By the Court.The measure of damages, in this case, ought to be the value of the wine, at the highest market price in this city, at any time till the beginning of the suit, adding thereto the freight to New-York, and deducting therefrom the value of the wine at New-York, when the plaintiffs received it.
Damages are always to be measured by the degree of injury which the party sustained, except in some cases when the defendant has been guilty *263of gross fraud or misconduct; then vindictive damages are sometimes given by the jury. In this case, no ill, intention can be imputed to the defendant: it is therefore enough, if the plaintiffs be made whole; they are not to be enriched at the expence of the defendant, neminem oportet alte-rius damno locupletari. The value which the plaintiffs put on their goods, is not to be recog-nised by the jury, unless evidence of its correctness be administered to them. The correct value cannot be more than the highest price, in the mar. ket, which the plaintiffs had selected, as the best for the sale of his goods. It is clear that if any individual, by any improper act of his, unmixed with fraud, had occasioned the destruction of the wines, we should have directed the jury to value them at the market price.
Verdict accordingly.