Hooghkirk agt. President, &c., of the Delaware and Hudson Canal Co. $2,500 (see Error Book in State Library), the court held that the jury, in an action of this character, could estimate the whole damages sustained by the father from the death, as well as those proceeding from the loss of services during minority as those after. There are many other cases (Quinn agt. Moore, 15 N. Y., 432, 436; O'Mara agt. Hudson R. R. R. Co., 38 N. Y., 445, 450; Tilly agt. Hudson R. R. R. Co., 29 N. Y., 252, 285, 287; S. C., 24 N. Y., 471, 475, 476; Carey agt. N. Y. C. and Hud. R. R. R. Co., 6 Abb. N. C., 104, 119; S. C., 78 N. Y., 518; Bierbauer agt. N. Y. C. and Hud. R. R. R. Co., 15 Hun, 559; affirmed, 77 N. Y., 588; and several others; also see article in Southern Law Review of May and June, 1882, pp. 68, 77, 78), which may be consulted in this connection, but those specially referred to clearly establish the following principles, viz.: 1st. The plaintiff in an action of this character need not show any direct pecuniary loss. 2d. When the circumstances and condition in life of the next of kin, and the age, sex and physical and mental characteristics of the deceased are shown, it is for the jury to estimate "the pecuniary injuries," present and prospective, to the next of kin. 3d. The court cannot say, 66 as matter of law," in the case of the death of an infant, and no actual loss in dollars and cents shown, "that there is no pecuniary damage in such a case, or that the expense of maintaining the child would necessarily exceed any pecuniary advantage which the parents could have derived from its services had it lived;" and that the "calcu lations" of the probable injuries "are for the jury," because evidence on such a subject, beyond what has been above stated to be proper, "would necessarily be speculative and hypothetical;" and 4th. When juries have only, by such lights as the circumstances and condition in life of the next of kin, and the physical and mental characteristics of the deceased afford, calculated and ascertained "the pecuniary injuries" to be hundreds of dollars, the court cannot interfere. These principles must be decisive of the case under con Hooghkirk agt. President, &c., of the Delaware and Hudson Canal Co. sideration. If, when the circumstances of the death, the situation and condition of life of the next of kin, and who and what the deceased was, are shown, the court cannot say, "as matter of law," that no damages have been sustained, and that verdicts for sums ranging from $1,500 to $4,500 (the latter was the verdict in Carey agt. N. Y. C. and H. R. R. R. Co., above cited) cannot be overturned upon the ground that they are not warranted by the evidence, then it is equally impossible to say, 66 as matter of law," that the verdict in the present case cannot be upheld. It is true, as judge RAPALLO says (47 N. Y., 320, 321), that evidence of damages in cases of this character "would necessarily be speculative and hypothetical," and for that reason such evidence would be improper; but, that which witnesses are forbidden to do, viz.: To speculate as to the probabilities of the future, he concedes a jury may do, and must do, when he holds that they must calculate the "pecuniary injuries" to the next of kin, present and future, based upon the simple facts of death, and circumstances and condition in life of the parties. In this region of conjecturefor it is simply and only that- no judge and no court can say, "as matter of law," that a verdict for $5,000 is in excess of the possibilities of the injury. In fact, and in truth, there is no middle ground between the position that the recovery must be limited to the actual pecuniary loss and damage proved, and the other, that the discretion of the jury in a case in which there is room for conjecture, is only limited by the maximum amount allowed by statute. Either the one or the other is the law, and as the courts of this state, at least, hold that the "calculations" of the damages, based solely upon the circumstances and conditions of the parties, are for the jury, it is impossible, as no fact is proven which shows the verdict to be necessarily excessive, to disturb the finding of the jury in this case. In reaching the conclusion just announced, it is proper to say that the case of Lehman agt. City of Brooklyn (29 Barb., 235), and others cited by the counsel of the defendant, have Chase agt. Union Stone Company. not been overlooked. The one just referred to is clearly in conflict with those in the court of appeals, upon which comment has been made. In regard to a question so important and interesting as that involved in this motion, judicial opinions must vary. It has been the aim of this opinion to show what principles have been established by our court of last resort, and apply such principles to the present case, rather than to critically review every reported decision. Upon principles, as it seems to me, clearly recognized by our court of appeals, the present motion for a new trial must be denied. N. Y. COMMON PLEAS. WILLIAM L. CHASE, respondent, agt. THE UNION STONE COMPANY, appellant. Agreement to purchase goods under an exclusive agency and to be allowed a specific discount with privilege of exchanging any purchase at any time— Interest not to be allowed Goods sent by plaintiff to be exchanged, which were damaged by fire in transit, by whom loss to be borne. The plaintiff dealt with defendant under a written agreement whereby the former was to purchase goods from the latter under an exclusive agency, and, was allowed a specific discount and the privilege of exchanging any of his purchases at any time: Held, 1. That there having been no final settlement or adjustment at any time prior to the trial, and the agreement contained no clause as to interest, the defendant was not entitled to charge interest. 2. The loss upon goods sent by plaintiff to defendant for exchange, which were damaged by fire while in transit, should be borne by plaintiff, as the goods belonged to him when shipped, and the title remained in him until they reached defendant's custody. General Term, July, 1882. Lockwood & Post and F. W. Griffin, for appellant. Abner C. Thomas, Jr., for respondent. Chase agt. Union Stone Company. BEACH, J.- Many items in dispute between the parties depended for disposition upon conflicting evidence. From examination it may be added that in each case the testimony was so nearly balanced as not to call for interference by an appellate court with the referee's conclusions. In the disposition of others, legal questions are involved, which in addition to the exceptions, merit the attention of this court, and will be briefly considered in the order presented by the brief of the learned counsel for the appellant. The first is an interest charge made by the defendant against the plaintiff, disallowed by the referee. The dealings between the parties were under a written agreement, whereby the plaintiff was to purchase goods from the defendant, being allowed a specified discount and the privilege of exchanging any of his purchases at any time. This plan of business. involved what properly may be called an open or running account. There was no final settlement or adjustment at any time prior to the close of the trial. The agreement contains no clause relating to interest, and under its terms the plaintiff did not stand with the defendants in the position of an ordinary purchaser. He was entitled to exchange goods, and was given by the defendant an exclusive agency, subject to the conditions in the written instrument. It would be an injustice to charge the plaintiff with a liability to pay interest. when not mentioned in the contract, or subsequently clearly agreed upon, or chargeable by law. There appears not to have been any after agreement affecting this question, and the account being one for merchandise and unliquidated, interest was properly disallowed (Liotard agt. Graves, 3. Caines, 226; Newell agt. Griswold, 6 Johns., 45; Reid, Administrator, etc., agt. The President, etc., of Rensselaer Glass Factory, 3 Cowen, 393; Smith agt. Viele, 60 N. Y.,. 106.) The next item is an amount arising from payment by the defendant on a claim of general average upon goods. returned by the plaintiff for exchange. The correspondence VOL. LXIII 43 Chase agt. Union Stone Company. between the parties, under which the defendant paid the sum, leaves open only the question of where rested the title to the merchandise when the steamer was burned. In his final letter upon this subject, the plaintiff writes: "You claim that the goods were not yours, nor at your risk on the Claucus. While we are very clear in our convictions to the contrary, without prejudice to the rights of either party as they now exist, which can be determined hereafter, would it not be wisdom that you should get what you can out of the general average arrangement of which you speak, and which we do not understand, and to have the amount of the loss reduced for the benefit of whomever it may concern." Upon the receipt of this letter the defendant signed the general average bond and paid the assessment. The return of these goods seems indisputably to have been for exchange, under the agreement giving the plaintiff that right with reference to any goods he purchased from the defendant. The plaintiff had bought the merchandise, and his exercise of the privilege did not make him a vendor or the defendant vendee, or subject the transaction to the rules governing the time of title passing between parties in that relationship. The goods belonged to the plaintiff when shipped; and the title remained in him until they reached the defendant's custody. The disallowance of the item by the learned referee and its affirmance by the court below, in my opinion was error. The exceptions by defendant taken to the admission of testimony claimed to vary the written agreements are rendered immaterial by the proceedings on the trial. The contention was narrowed to the validity of certain items in each account, and the evidence admitted under the exceptions had no relevancy to or effect upon the contention thus made. In this view they furnish no sufficient ground for reversing the judgment. The exceptions at folio 186 and 416 are not tenable, because it was competent for the plaintiff to recover any item of his account established by an independent agreement between the |