§ 854. DELAY IN DELIVERY. 623 who, having no instructions about it, sold it immediately, and cotton rose rapidly and steadily after the sale, the court applied the rule of damages that governs the case of factors who sell their principals' goods without authority, and held the carrier liable, at least for the price at the time the plaintiff got the full advice of the sale.(*) 854. Delay in delivery.-The extent of a carrier's liability for delay in the transportation or delivery of goods has been a subject of much discussion. Where there is no injury to the goods, and they are offered to the owner after the time when, by his express or implied contract, it was the carrier's duty to deliver them, the owner is not entitled to refuse to receive them with the view of holding the carrier for their full value. If he does so, he can recover, in the absence of special circumstances, an indemnity only for his actual loss. (") The measure of damages in the ordinary case is the difference in the value of the goods at the time and place they ought to have been delivered, and at the time of their actual delivery, () less unpaid freight,() with interest. (*) So (*) Arrington v. Wilmington & W. R.R. Co., 6 Jones L. 68. For this rule see ch. xv. (St. Louis, I. M. & S. Ry. Co. v. Mudford, 44 Ark. 439; Scovill v. Griffith, 12 N. Y. 509; Briggs v. New York C. R.R. Co., 28 Barb. 515; Nettles v. South Carolina R.R. Co., 7 Rich. L. 190. (c) Collard v. Southeastern Ry. Co., 7 H. & N. 79; 30 L.J. (N. S.) Ex. 393; 4 T. L. Rep. (N. S.) 410; Bussey v. M. & L. R. R.R. Co., 4 McCrary 405; Atlanta & W. P. R.R. Co. v. Texas Grate Co., 81 Ga. 602; Wilson v. Atlanta & C. Ry. Co., 82 Ga. 386; East Tennessee, V. & G. Ry. Co. v. Johnson, 11 S. E. Rep. 809 (Ga.); Galena & C. U. R.R. Co. v. Rae, 18 Ill. 488; Weston v. Grand T. Ry. Co., 54 Me. 376; Ingledew v. Northern R.R. Co., 7 Gray 86; (4) Page v. Munro, 1 Holmes 232 (semble); St. Louis, I. M. & S. Ry. Co. v. Phelps, 46 Ark. 485; Lindley v. Richmond & D. R.R. Co., 88 N. C. 547. (*) See most of the authorities above cited, and Dunn v. Hannibal & S. J. R.R. Co., 68 Mo. 268; Houston & T. C. Ry. Co. v. Jackson, 62 Tex. 209; Newell v. Smith, 49 Vt. 255. where cattle shrink in weight through delay in transportation, the loss through the shrinkage may be recovered. (*) So in Vermont, a carrier engaging to transport live stock to market by the following market day, and failing to do so, is liable for the difference be tween what the stock was necessarily sold for, and what it would have brought on the market day. () In Sisson v. Cleveland & T. R.R. Co.,() the contract of the carrier was to transport from Toledo to Buffalo, cattle whose ultimate destination, as the carrier was informed at the time, was the Albany or New York market. There was no fall in prices before the cattle had reached Buffalo, but owing to the defendant's delay, they were not delivered at Albany until after a decline had occurred. The court held the loss to be the direct consequence of the defendant's delay attending the cattle to their destination, as the effects of a fatal injury would have followed them to their death, and one therefore for which the carrier must make compensation. Where cattle are delayed in transit so that they reach their destination too late to Cutting v. Grand T. Ry. Co., 13 All. 381; Scott v. Boston & N. O. S.S. Co., 106 Mass. 468; Clement & H. M. Co. v. Meserole, 107 Mass. 362; New Orleans, J. & G. N. R.R. Co. v. Tyson, 46 Miss. 729 (semble); Faulkner v. South P. R.R. Co., 51 Mo. 311; Rankin v. Pacific R.R. Co., 55 Mo. 167; Ward v. New York C. R.R. Co., 47 N. Y. 29; Zinn v. New Jersey S. B. Co., 49 N. Y. 442 (semble); Holden v. New York C. R.R. Co., 54 N. Y. 662; Sherman v. Hudson R. R.R. Co., 64 N. Y. 254; Nettles v. South Carolina R.R. Co., 7 Rich. L. 190; East Tennessee, V. & G. R.R. Co. v. Hale, 85 Tenn. 69; Texas P. Ry. Co. v. Nicholson, 61 Tex. 491; Newell v. Smith, 49 Vt. 255; Peet v. Chicago & N. W. Ry. Co., 20 Wis. 594; Monteith v. Merchants' D. & T. Co., 1 Ont. 47; 9 Ont. App. 282. (*) Illinois C. R.R Co. v. Owens, 53 Ill. 391; Kansas P. Ry. Co. v. Reynolds, 8 Kas. 623; Smith v. New Haven & N. R.R. Co., 12 All. 531; Sturgeon v. St. Louis, K. C. & N. Ry. Co., 65 Mo. 569; Glascock v. Chicago & A. R.R. Co., 69 Mo. 589; Ayres v. Chicago & N. W. Ry. Co., 75 Wis. 215. () King v. Woodbridge, 34 Vt. 565. (e) 14 Mich. 489. § 855. DELAY IN TRANSPORTATION BY SEA. 625 be sold in the market on Saturday, the owner may recover for shrinkage until Monday's market. (*) So in an action by a cap manufacturer for damages for the loss sustained by delay in the delivery of cloth, by which the plaintiff had lost the season for making it into caps, it was held by the English Court of Common Pleas, that although the loss of profits as such could not be taken into account, within the rule of Hadley v. Baxendale, yet the loss in the market value of the goods through their arriving too late for the season was a proper element of damages.(*) Where, from the carrier's inexcusable delay, peas shipped from Canada to New York were stopped on the way by the freezing of the lakes, and would have been detained through the season, and on the carrier refusing to carry them to New York by rail, or deliver them to the plaintiff except on payment of freight, the plaintiff replevied them, and sent them to the Boston market, which was a judicious course, he was held entitled to recover the difference between the net proceeds of their sale at Boston and their market value at New York, at the time when they should have been delivered. (c) If there is no recovery on account of depreciation, the loss of use of the property during the period of delay may be recovered ;(4) thus in case of delay in the transportation of money interest may be recovered. (*) 855. Delay in transporting by sea.-In case of transportation by sea, the general rule has been disapproved in England. The Parana (') was a libel by (*) Ayres v. Chicago & N. W. Ry. Co., 75 Wis. 215. () Wilson v. Lancashire & Y. Ry. Co., 9 C. B. N. S. 632. (c) Laurent v. Vaughn, 30 Vt. 90. (d) Murrell v. Dixey, 14 La. Ann. 298; Smith v. Whitman, 13 Mo. 352. (*) United States Ex. Co. v. Haines, 67 Ill. 137. () 1 P. D. 452; 2 P. Div. 118. VOL. II.-40 the assignee of bills of lading (a mortgagee) against a ship-owner for delay in the arrival of his ship. The libellant claimed damages for leakage of some sugar which had been shipped, and for loss on account of a fall in the price of hemp between the time when the ship ought to have arrived and the time when she did. arrive. The plaintiff had kept the hemp for some time afterwards, and had then sold it at a considerable loss. It was held proper to allow damages for leakage of the sugar, but it was held error to allow damages for loss of the market, i. e., the difference in price between the two dates. Such a profit, it was said, was too speculative. Mellish, L. J., adopted the rule laid down by the court below: "The principle is now settled, that whenever either the object of the sender is specially brought to the notice of the carrier, or circumstances are known to the carrier from which the object ought in reason to be inferred, so that the object may be taken to have been within the contemplation of both parties, damages may be recovered for the natural consequences of the failure of that object." He proceeded : "There is no case, I believe, in which it has ever been held that damages can be recovered for delay in the carriage of goods on a long voyage by sea, where there has been what may be called a merely accidental fall in price between the time when the goods ought to have arrived, and the time when they did arrive--no case, that I can discover, where such damages have been recovered; and the question is, whether we ought to hold that they ought to be recovered. If goods are sent by a carrier to be sold at a particular market; if, for instance, beasts are sent by railway to be sold at Smithfield, or fish is sent to be sold at Billingsgate, and, by reason of delay on the part of the carrier, they have not arrived in time for the market, no doubt damages for the loss of market may be recovered. Or, if it is known to both parties that the goods will sell at a better price if they arrive at one time than if they arrive at a later time, that may be a ground for giving damages for their arriving too late § 855. DELAY IN TRANSPORTATION BY SEA. 627 and selling for a lower sum. But there is, in this case, no evi- As to the cases in which damages for such loss of profits were allowed against railway companies, he said: "When goods are conveyed by railway, if they are conveyed for the purpose of sale, it is usually for the purpose of immediate sale; and if the cases are examined, I think it will be found that the courts treated them as if the goods were consigned for the purpose of immediate sale." After citing two such cases,(^) he continued: "The difference between cases of that kind and cases of the carriage of goods for a long distance by sea, seems to me to be very obvious. In order that damages may be recovered, we must come to two conclusions-first, that it was reasonably certain the goods would not be sold until they did arrive; and, secondly, that it was reasonably certain that they would be sold immediately after they arrived, and that that was known to the carrier at the time when the bills of lading were signed. It appears to me that nothing could be more uncertain than either of those two assumptions in this case. Goods imported by sea may be, and are every day, sold whilst they are at sea. If the man who is importing the goods finds the market high, and is afraid that the price may fall, he is not usually prevented from selling his goods because they are at sea. The sale of goods to arrive, the sale of goods on transfer of bill of lading, with cost bills and insurances, is a common mercantile contract made every day. . . . . It was said that the goods were sold, and that if the person who sells them does not suffer the damage, then the purchaser would suffer the damage. But that is pure speculation. If a man purchases goods while they are at sea, no person can say for what purpose he purchases them. . In this particular case the plaintiff did not sell the goods when they ar (*) Collard v. Southeastern Ry. Co., 7 H. & N. 79; Ward v. New York: C. R.R. Co., 47 N. Y. 29. |