86 Miss. 329 | Miss. | 1905
delivered tbe opinion of tbe court.
Tbe appellee here, who was plaintiff below, was engaged during tbe fall of 1903 in operating a cotton gin in tbe town of Scobey. Some time near tbe middle of December be broke a piston rod — the same being necessary to the ojjeration of
The judgment must be reversed. Instruction No. 1 for plaintiff is erroneous, in that it assumes that the property consigned to him belonged to him, when the evidence, as to the greater part of it, shows the contrary.'
Instruction No. 3 for plaintiff is erroneous, in that it authorizes the jury, in determining the rental value of his machinery,
Instruction No. 4 asked for defendant should have been given. ' Defendant was entitled to even a more favoraDle statement of the law than was contained in this refused instruction. Certainly it could not he made liable for special or extraordinary damages unless notice of the importance of the shipment and prompt delivery had been made at some time before the shipment had been lost or had been misplaced or miscarried.
Instruction No. 5 for defendant, as modified by the court, is clearly erroneous; but, as the original instruction is not itself correct, in the absence of any proof in' the record that the contract of affreightment with the Southern Express Company was a through contract, of whose terms the connecting carrier, the American Express Company, had the right to avail itself, defendant could not complain of the modification.
Inasmuch as the case must be tried anew, it is proper that we state the law with regard to the measure of damages applicable to this case and others of like character. In the leading case of Hadley v. Baxendale, 9 Excheq., 341—a case in its facts very much like the case at bar — the court said: “Now, we think the proper rule in such a case as the present is this: 'Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally (i. e., according to the usual course of things) from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.
Counsel for appellee, while conceding tbe correctness of tbe rule as a general proposition, contends tbat “it makes no difference whether tbe carrier bad notice of tbe special purpose to which the consignee intends to put tbe machinery at tbe time of tbe contract of affreightment, provided such notice is given it during tbe period of transportation, and in such event tbe carrier will be liable for special damage accruing for unreasonable delay after such notice is given.” Tbe only one of tbe five cases cited in support of this proposition which seems clearly to support it is tbe case of Gulf, C. & S. F. Ry. v. Gilbert (Tex. Civ. App.), 22 S. W., 760.; but tbe supreme court of Texas, on a rehearing of this case’ admitted error in tbe former decision, and delivered a strong opinion repudiating tbe modification of tbe rule contended for by counsel, and declaring tbat “it is not enough to give notice to tbe carrier after tbe contract is made, and tbe shipment has started in its transportation, because tbe liability of tbe carrier cannot be increased by tbe subsequent knowledge of facts that did not exist in tbe contemplation of tbe parties at tbe time tbe engagement was entered into. It then became an effort upon tbe part of one of tbe contracting parties to inject a stipulation into tbe contract after it was entered into tbat increases tbe liability of tbe other, tbat was not mutually considered when the engagement was made.” Gulf, C. & S. F. Ry. Co. v. Gilbert (Tex. Civ. App.), 23 S. W., 320. Tbe modification contended for it is not supported by authority, is not founded in reason, and will not receive tbe sanction of this court.
It is contended, again, by counsel for appellee, tbat tbe rule requiring notice of special circumstances in order to tbe reeov-
If upon another trial of this case it shall be developed that the Southern Express Company made a contract for through shipment, contracting for both itself and its connecting line, the American Express Company, special damages will not be allowed unless it shall appear that, before the articles were received by the Southern Express Company for shipment, it had notice of the special circumstances of plaintiff’s situation and of the great importance to him of prompt carriage and delivery. If it shall appear that the Southern Express Company
Reversed and remanded.