rived, for he sold them some months afterwards, when a further fall had taken place in the market. Of course, he does not seek to recover from the defendant that additional loss, but this serves to illustrate how uncertain it is whether he would have sold them. If he did not sell them when they did arrive, but kept them because he thought the market would rise, how can we tell that he would not have done exactly the same thing if the goods had arrived in time? Therefore, it seems to me, that to give these damages would be to give speculative damages-to give damages when we cannot be certain that the plaintiff would not have suffered just as much if the goods had arrived in time.” We have quoted from this opinion at length because it illustrates the difficulties which arise from the introduction into cases of this character of what seems to be an irrelevant question. We have already had occasion in the chapter on Sales () to criticise the reasons so often given for the rule of market value in that class of cases that the purchaser can replace himself at that price. If what we have said is sound,, it is equally objectionable in the class of cases now under consideration to treat the rule of market value as dependent upon the intention of the consignee to sell again. The foundation of the rule is that the consignee is entitled to the actual value of the goods at the time agreed upon for delivery. This is what he is deprived of by the breach of contract. There is nothing speculative in this as a measure of damages, and he is equally entitled to it, whether he keeps, sells, gives away, or destroys the goods. Nor can it make any difference whether the transportarion is by land or sea. §856. Consequential damages. In Vicksburg & M. R.R. Co. v. Ragsdale, () an action for delay in transport (*) $735. (1) 46 Miss. 458. § 856. CONSEQUENTIAL DAMAGES. 629 ing a boiler intended for a saw-mill, Simrall, J., laid down the following rules: 1. The proximate natural consequence of the breach must always be considered. 2. Such consequences as from the nature and subjectmatter of the contract may be reasonably thought to have been in the contemplation of the parties at the time it was entered into, should also be taken into account. 3. Damages not the natural sequence of the breach shall not be recovered, unless by the terms of the agreement, or by direct notice, they are brought within the expectation of the parties. 4. Loss of profit in a business cannot be allowed, unless the data of estimate are so definite and certain that they can be ascertained reasonably by calculation, and then the party in fault must have had notice, either from the nature of the contract, or by explanation of the circumstances at the time it was made, that such damages would ensue from non-performance. 5. If the contract was made with reference to embarking in a new business, such as sawing lumber, the speculative profits which might have been expected, but which were defeated, cannot be looked to as an element of damage. 6. If the delay is in the transportation of machinery to be applied to a special use known to the carrier, he is responsible for such damages as are fairly attributable to the delay, such as the value of the use of the machinery, to be tested by the rental price or other approximate means, the expense of hands left idle, and the loss of gains on work contracted to be done, if such work could have been done had the machinery been delivered. 7. The party injured must not remain inactive, but should make reasonable exertions to help himself and diminish the responsibility of the party in default to him. In the case at bar, he said that compensation should be given for loss of use of the machinery, expense of idle hands, and of search for the machinery, and injuries to the machinery because of delay. * Where in consequence of the delay it became necessary to remove the goods to another place to sell them, it was considered that the expenses of such removal were rightly recoverable; but the question of such necessity is of course for the jury.1** In an action against a carrier for delay in delivering machinery, the measure of damages was held to be the value of the use of the machinery during the period of improper detention. (*) The carrier cannot be holden for time, nor for expenses, if they are not the natural and necessary consequences of the delay. (*) So in Georgia, where a manufacturer's business was suspended in consequence of delay in the arrival of coal through the carrier's default, evidence of the amount of profit which might have been realized but for the delay, is held not to be admissible.() In a case in the Court of Queen's Bench, where some regalia which were to be used in a procession by the plaintiff, and which he had hired at an expense of £20, were not delivered by the carrier in time for the procession, and the plaintiff was at an expense of £5 in looking for the goods, he was held entitled to recover the latter item, on account of unreasonable delay, but not the former, which was too remote, the carrier having had no notice of the object for which the goods were to be used. Lord Cockburn, C. J., said: "It is a reasonable doctrine not to make the carrier liable for damage sus 1 Black v. Baxendale, 1 Ex. 410. (*) Priestly v. Northern Indiana & C. R.R. Co., 26 Ill. 205; acc. U. S. Ex. Co. v. Haines, 67 Ill. 137. () Benson v. New Jersey R.R. & T. Co., 9 Bosw. 412. (^) Cooper v. Young, 22 Ga. 269; acc. Haas v. Kansas City, F. S. & G. R.R. Co., 81 Ga. 792. § 856. CONSEQUENTIAL DAMAGES. 631 tained in consequence of goods not arriving in time, unless he had notice that time was of importance; but the person who sends his goods is entitled to expect that they shall be sent from place to place in a reasonable time."(*) So, also, the hotel expenses of a traveller waiting for a parcel delayed by a carrier who was not informed of the purpose for which it was intended, were held too remote. () If, however, a notice is given of any particular object in view in making the shipment, the special damages can be recovered.() In Horne v. Midland Ry. Co.() the defendant knew that the plaintiffs had shipped their goods to meet a contract, but did not know the terms of that contract. It was held that the notice was not sufficient to charge the defendant with the loss of an exceptional contract, but only of one at the usual market rates. The plaintiff can recover for the loss of profits he would have made out of a special contract, if he gave notice of that contract. (°) So in New Hampshire, where a large quantity of wool was delivered to the Grand Trunk Ry. Co. for transportation to Boston. The agent (*) Hales v. London & N. W. Ry. Co., 4 B. & S. 66, 70. (c) In a somewhat early case, where in consequence of the carrier's unreasonable delay in the delivery of an account of the plaintiff against a third party, it was barred by the statute of limitations, he was held liable for the amount. Favor v. Philbrick, 5 N. H. 358. The sum involved in this case was small, and the decision would seem to have gone on the right rather than the measure of recovery. To make it, as regards the latter point, conform to the law as now established, the carrier should have notice beforehand of the particular necessity for punctual delivery; and it should have appeared also, if the point were controverted, that the debt would have been collectible but for the statute. On this question there appears to have been no evidence. (4) L. R. 7 C. P. 583; L. R. 8 C. P. 131. (*) Illinois Central R.R. Co. v. Cobb, 64 Ill. 128. But not if the jury believe that the sub-contract would not have been carried out, Illinois Cent. R.R. Co. v. Cobb, 64 Ill. 143. of the company was informed that it was sold if it could go at once, and agreed that it should go next morning. But the defendant delayed transporting it more than three weeks, and in consequence of the delay the purchaser declined to take it. Meantime the demand and price had declined, and the defendant was held liable for the difference between the contract price and the value of the goods when delivered. (*) So in the case of Wilson v. York, Newcastle and Berwick Ry. Co.() it was held by Jervis, C. J., at Nisi Prius, that a carrier undertaking to carry fish to a particular market in time for the morning's sale was liable for the profit lost by his failure to get them there in time for that sale. This case, which preceded Hadley v. Baxendale, is also justified by the second head of the rule adopted in that case. In Grindle v. Eastern Express Co.() the plaintiff's intestate delivered to the defendant some money to be sent to B. to pay the premium on an endowment policy. The defendant knew the purpose for which the money was sent, but failed to deliver it in time, consequently the policy lapsed. It was held that the plaintiff could recover the net value of the policy when it lapsed. It was also held, however, that the defendant would not be liable for such damages as the plaintiff, by the use of reasonable means, such as by reinstating himself with the company or by reinsuring, might have avoided. It has been held that when goods were addressed "To the show ground at N.," there was sufficient notice that they were sent for a (") Deming v. Railroad, 48 N. H. 455; acc. St. Louis, I. M. & S. Ry. Co. v. Mudford, 48 Ark. 502 (semble); Chicago & A. K.R. Co. v. Thrapp, 5 III. App. 502. In Medbury v. New York & E. R.R. Co., 26 Barb. 564, such damages were allowed, though the report of the case does not show that the carrier had notice of the contract. () 18 Eng. L. & E. 557. (c) 67 Me. 317. |