116 Tenn. 624 | Tenn. | 1906
delivered the opinion of the Court.
The defendant in error had a contract to bore a deep • well at Blytheville, in the State of Arkansas, and having a part of the apparatus, used in doing such work in Grenada, Mississippi, on the 23rd of September, 1903, at that point delivered to the Illinois Central Railroad Company, for shipment to Memphis, Tennessee, this property which was consigned to their own order. On the 2d of October, 1903, they were notified by their agents
In the amended declaration, with very much more of detail than was found in the counts of the original
In the conclusion of this pleading is the following paragraph : “Plaintiffs further aver that they have a right of action against the defendants for the loss of said articles and delay in their shipment and prompt delivery; for the cost of supplying same; the freight paid thereon; the loss of the profit in said contract at Blytheville; the loss of shipping and reshipping to the town of Blythe-ville; and the cost of keeping said crew of men from the time said machinery and articles should have been delivered by the defendants to the time of the cancellation of said contract.”
Upon proper pleas this case went to the jury, which returned a verdict as follows: “We, the jury, find damage for the plaintiff of $880, for rental of equipment, and
It is'unnecessary to set out the several assignments of error, as it is conceded by the respective counsel that all, save one, are resolvable into the single question, what is the proper measure of damages in this case? — it being conceded by the plaintiff in error that for its failure to deliver in .a reasonable time the defendants in error are entitled at least to recover nominal damages.
It was insisted in the lower court, and the insistence is repeated here, that under the evidence adduced, and upon the rule of law invoked by the defendants in error, they were entitled to recover all the special damages claimed in their declaration. It is conceded by their counsel, at least by implication, that their right to a recovery of these damages is conditioned upon notice having been brought home to the railroad that a breach of its contract for prompt delivery would result in a loss to them such as is here sued for. The evidence upon which they rely as showing the existence of such notice is found in the testimony of Mendenhall, who, as the agent of Johnson & Fleming, delivered this outfit to the railroad company at Grenada for shipment. He testified
The rule which the plaintiffs below invoke, and upon which they rely in this court, is that announced in Had
After thus interpreting the rule, the court proceeded to examine the testimony on this point, and sets the same out in the opinion, from which it distinctly appears that the agent of the machine company, for whose default the suit was brought, thoroughly understood at the time of taking the contract the purpose that the compress company had in view in making the contract, and the necessity of strict compliance with the same. It was upon this testimony, which clearly showed that the machine company was put on distinct notice of the consequences of a breach of its contract, that the rule of special damages was enforced in that case. This is equally so as to the case of Railroad v. Cabinet Company, 104 Tenn., 568, 58 S. W., 303, 50 L. R. A., 729. There the railroad was held liable for special damages resulting from negligent delay in delivery of goods, because at the time of the receipt of the goods for transportation it had notice that they were shipped upon a penalty contract. These, and many other cases, are reviewed in Chisholm v. U. S. Canopy Co., 111 Tenn., 204, 77 S. W., 1062. So it may be said that it is settled in this
The fact out of which the controversy grew in Hadley v. Baxendale was that plaintiffs were the owners of a steam mill in which there was a broken shaft. This they gave to the defendant carrier to take to ‘the engineer to serve as a model for a new one. On making the contract the defendant’s clerk was informed that the mill was stopped and that the shaft must be sent back immediately. . He delayed its delivery. The shaft was kept back in consequence, and in an action for breach of contract the plaintiffs claimed as specific damages the loss of profits while the mill was kept idle. It was held in that case that the carrier could not be made responsible to such an extent, as it did not appear that he knew that the want of the shaft was the only thing which was keeping the mill idle. In line with that case, and bottomed on it, are many English and American cases all holding to the same view. These cases are referred to and cited as authority for the text to be found in Sedgwick on Damages, Sutherland on Damages, and other works on their general subject.
In view of the rule and of the many illustrations of it to be found in the various cases which we have had
In Crutcher v. Choctaw, etc., R. Co. (Ark., 1905), 85 S. W., 770, Am. & Eng. R. R. Cases (N. S., 39), 661, the court says: “It is contended by appellant that notice given to the carrier, after the making of the contract and shipment of the property, of the special circumstances, is sufficient to charge the carrier with the indorsed damages. This is not correct. The notice must
While it may be true, as stated in the citation found in the brief of counsel for Johnson & Fleming from 5 Am. & Eng. Encyc. of Law, p. 394, that whether or not the carrier had notice of the special circumstances which are relied on as a ground for the damages (special) claimed, is usually a question of fact for the jury to determine. This, however, is not so where the testimony with regard to the notice is incontrovertible and is clear and distinct. It is then a question of law for the court. It has been quite often held that contributory negligence is ordinarily a question to be determined by a jury, but when the testimony on the subject bears but one interpretation, which all reasonable minds would accept, then it becomes a question of law for the court. In the present case the evidence already
But it is said by the same counsel that the nature of this shipment was of itself equivalent to notice. We are unable to see how the mere delivery of iron piping, etc., would have suggested in the remotest degree to the agent of the railroad the existence of a contract for the boring of a well. For their contention on this point Johnson & Fleming, through their counsel, refer to I. C. R. R. Co. v. Cobb, 64 Ill., 143. In that case, however, it appeared that the defendant carrier knew that certain corn intrusted to it for transportation was to be sold to the government at a certain price. The com was damaged en route through a delay in transportation, and the plaintiff was obliged to sell it at the same price for which he had bought it. The court held that the measure of damages recoverable was the difference between what he received for the corn and the price at which he had contracted to sell it. It will be seen from this statement that the carrier at the time of the receipt of the corn had actual knowledge of the contract of sale, and was properly chargeable, therefore, upon that knowledge with the special damage resulting to the plaintiff from failure to promptly transport and deliver. We are equally unable to find any authority for the contention of the plaintiff below in the case of Vicksburg, etc., R. Co. v. Ragsdale, 46 Miss., 458. On the
In addition to the railroad being only liable for the
The judgment of the lower court is reversed, and the cause is remanded.