61 S.E. 381 | N.C. | 1908
By the testimony offered on the part of plaintiff, and admissions of defendant company, it was made to appear that, in compliance with an order from plaintiff, John T. Watson on 28 June, 1906, delivered to the defendant at Danville, Va., two car-loads of brick, taking therefor a bill of lading to his order, "Notify W. H. Phillips, Lexington, N.C." who was secretary and treasurer of plaintiff company. Said Watson drew a draft for $110.25, the price of the brick, on the plaintiff company, and attached thereto the bill of lading and forwarded the same through the banks to Lexington. On 29 or 30 June W. H. Phillips, as secretary and treasurer of the plaintiff company, paid the draft and received the bill of lading.
On 29 June, and while the cars were still on the yard of the defendant at Danville, Va., Watson requested the defendant to divert the cars to another customer of his. In pursuance of this request the defendant diverted this shipment, taking from said Watson a bond to indemnify defendant for any loss or damage by reason of said diversion, and in consequence thereof the plaintiff did not receive them, and it was three weeks later before the brick could be replaced.
The plaintiff was constructing at Lexington a three-story brick building, and the brick were ordered to be used in that building. The plaintiff was unable to get the desired kind of brick elsewhere, and was delayed in the completion of its building for three weeks, this being the wrong complained of. Prior to the time in question the plaintiff had the building rented to responsible persons to the amount or sum of over $250 per month, said rent to begin upon completion of the building. (505)
At the time of the delay the plaintiff had invested $20,000, the lot being worth $5,000 and the building as it then stood $15,000. This money was idle for the period of delay, and the plaintiff was paying interest upon it.
There was no evidence other than that afforded by the order itself that the defendant at the time of the delivery to it by Watson of the brick knew for what they were to be used, nor did the defendant have any information or knowledge that the plaintiff was constructing any building or hind any capital invested or would in any way suffer any special damages.
The court held that on the facts (1) the defendant was liable; (2) that the correct amount of damages was the rental value of the building for the three weeks wrongful delay, to wit, three-fourths of $250, or $187.50.
Defendant excepted to both rulings. Verdict and judgment for $187.50, and defendant appealed. *376 After stating the facts: There is no question of the position insisted on by defendant, that the consignor of goods who has shipped them to his own order may divert them from their original destination, and as a general rule this is not changed by the fact that they are shipped with directions to notify a given person, the proposed vendee. Under such an arrangement, without more, the goods remain the property of the original owner, and he has the right to dispose of them as he desires. This right, however, as between the parties, does not exist when the carrier has given a bill of lading for the goods which has been indorsed and forwarded, with draft attached, to the proposed vendee and such vendee has paid the draft and taken over the bill of lading (506) without notice and before the goods would have reached their original destination in the ordinary course of shipment.
In Hutchison on Carriers, sec. 193, the position is stated as follows: "When there has been no agreement to ship the goods which will make the delivery of them to the carrier a delivery to the consignee and vest the property in him, the shipper may, even after the delivery to the carrier and after the bill of lading has been signed and delivered or after the goods have passed from the possession of the initial carrier into that of a succeeding one, alter their destination and direct their delivery to another consignee, unless the bill of lading has been forwarded to the consignee first named or to some one for his use." And Moore on Carriers, sec. 11, is to like effect: "A carrier, in delivering goods to a party claiming them without requiring him to produce the bill of lading, always assumes the risk of the bill's having been previously transferred to an innocent purchaser. Where a common carrier delivers goods intrusted to him for carriage without production of the bill of lading describing the goods, it is liable in trover for their value to a bona fide holder of such bill taken for value before the delivery of the goods at destination, even where it delivered the goods to the shipper at an intermediate point."
Instances of the doctrine in its practical application will be found inBank v. R. R.,
On the facts, therefore, the plaintiff had a clear right to recover for the damages suffered by reason of the wrongful delay in the shipment, either against the carrier or the shipper, for there is no claim or testimony tending to show that in ordering a new supply of brick the parties expected or intended an adjustment or surrender of plaintiff's claim for damages for the injury lie had suffered. It is evident, too, that defendant did not act in ignorance of plaintiff's rights or of its own obligation, for before defendant would obey the directions of the shipper to divert the goods it required a bond of indemnity.
We are of opinion, however, that there was error on the part of the court as to the amount of damages which plaintiff is entitled to recover on the facts as they are now presented. Damages of the kind claimed in this action, i. e., consequential damages, are only recoverable when they are the natural and probable consequence of the carrier's (508) default. Hale on Damages, 256. And ordinarily such damages are only considered natural and probable when they may be reasonably supposed to have been in contemplation of the parties at the time the contract was made. Wood's Mayne on Damages, 18; Neal v. Hardware Co.,
In the case at bar there are no facts or circumstances shown which would entitle plaintiff to a greater amount of damages than the interest on the value of the two car-loads of brick for the time of the wrongful delay. There was no evidence offered that defendant company was aware that the brick were to be used in a building of any special size or kind, or a wrongful diversion would work the delay which resulted. So far as it reasonably appeared to defendant, the brick were ordered for the trade, and, in the absence of any testimony as to change in the value of the brick, the interest on the amount invested in the shipment for the three weeks, as heretofore stated, is the measure of plaintiff's loss for which defendant can be held responsible. In the cases chiefly relied on by plaintiff (Neal v. Hardware Co., supra, and Rocky Mount Mills v. R. R.,
There is error, to defendant's prejudice, and a new trial is awarded.
Error.
Cited: Furniture Co. v. Express Co.,
(510)