Lead Opinion

Horas, J.,

after stating the case. In Harper v. Express Co., 148 N. C., pp. 87-90, tbe Court, in speaking to the question of damages, recoverable by reason of wrongful delay in shipment of goods, said: “Where the goods shipped have a market value, and there is nothing to indicate the specific purpose for which they were ordered, these damages are irsually the difference in tbe market value of tbe goods at the time for delivery, and that when they were in fact delivered. We have so held in the case of Davidson Development Co. v. R. R., 147 N. C., 503, and Lee v. R. R., 136 N. C., 533, is to the same effect. When, however, the goods are ordered for a special purpose or for present use in a given way, and these facts are known to the carrier, he is responsible 'for the damages fairly attributable to the delay and in reference to the purpose or the use indicated. And it is *151not necessary always that those facts should be mentioned in the negotiations, or in express terms made a part of the contract, but when they are known to the carrier under such circumstances, or they are of such a character that the parties may be fairly supposed to have them in contemplation in making the contract, such special facts become relevant in determining the question of damages,” citing Moore on Carriers, p. 425, and Hutchinson on Carriers, sec. 1367. The modification of the general rule, suggested in this excerpt, is not infrequently called for in shipments of machinery, and, under several decisions of our Court on this subject, it may be that the facts now in evidence require that the question of substantial compensatory damages, arising by reason of notice or knowledge of special circumstances had at the time of shipment, should be submitted to the jury. Lumber Co. v. R. R., 151 N. C., p. 23; Sharpe v. R. R., 130 N. C., p. 613; Rocky Mount Mills v. R. R., 119 N. C., p. 693. Without final determination of this matter, however, we are of opinion that there was error in excluding the testimony offered by plaintiff to show definite notice of special circumstances given after shipment made. True, the bill of lading was issued to the witness, Gurganus, but it is also true that he had no personal interest in the goods or their shipment, but was acting, at the time, for the plaintiff company, “which had purchased the machinery, paid for it, received it upon arrival at Williamston and there paid the freight charges thereon and installed same in its plant.” From these facts we see no reason why the plaintiff company, as undisclosed principal, did not acquire and hold the general business rights and interests arising from the contract and under the general principles obtaining in case of such a relationship. Nicholson v. Dover, 145 N. C., p. 20; Barham & Owens v. Bell, 112 N. C., p. 131; Clark & Skyles on Agency, p. 1155; Tiffany on Agency, pp. 304, 305. In case of Barham v. Bell, supra, it was held: “Where a contract, not under seal, is made with an agent in his own name for an undisclosed principal, either the agent or principal may sue upon it; the defendant, in the latter case, being entitled to be placed in the same position, at the time of the disclosure of the real principal, as if the agent had been the real con*152tracting party,” and in more general terms in Clark & Skyle, supra, it is said: “It is held, therefore, that where a person enters into a simple contract, other than a negotiable instrument, in his own name, but in fact as agent for an undisclosed principal, the principal may come in and sue the third party on the contract, and that this is true, not only where the agent disclosed the existence, but not the name of the principal, but also where he does not even disclose the existence of the principal.” A principle undoubtedly correct, where, as in this case, neither the personality of the agent nor the claims of the third party against him, personally, require consideration. This then being the position of the parties, if the nominal consignee and the president of the plaintiff company gave the notice embodied in the proposed evidence, and there was negligent delay on the part of the defendant, after being afforded full and reasonable opportunity to correct the wrong, such negligence would constitute a tort, giving the plaintiff right to recover damages on facts as they then appeared. This is one principal difference in the elements' of damages, obtaining in breach of contract and consequential damages arising from a tort. In the one case damages are recovered, as a rule, on relevant facts in the reasonable contemplation of the parties at the time the contract is made, and in the other on the facts existent or as they reasonably appeared to the parties at the time of the tort committed. The obligation of diligence imposed by the law on common carriers is continuous during the entire course of the carriage, and a negligent failure to perform such duty, causing special damage to a passenger or shipper of freight, is a tort arising whenever the same occurs. "We must not be understood as holding that this consequential damages, to arise by reason of special circumstances, would commence at the very instant the notice was given to some local agent of the company. The notice, as indicated, must be such as to afford fair and reasonable opportunity to avoid further delay under conditions as they existed when the notice was received, and damages arising thereafter might then be properly estimated under the circumstances which the notice discloses. There is suggestion, from authoritative sources, that in these continuous contracts of carriage, notice of special cir*153cumstances, given during tlie course of performance would be relevant as affecting tbe question of tbe amount of damages even wben tbe action could only be considered as one for a breach of contract. Tbis was made by Bramwell Baron in the case of Gee v. R. R., H. & N., p. 2116 (Exch.), and referred to in Woods Mayn on Damages, p. 35.- Tbis suggestion was applied by a Texas court, in tbe ease of R. R. v. Gilbert, and was at first affirmed on appeal, but was afterwards rejected, tbe Court of Civil Appeals bolding, on a rehearing, that notice given, after contract, of shipment made should not be allowed to affect tbe question. R. R. v. Gilbert, 4 Texas-Civil Appeals, p. 366. In a subsequent case, however, and on a different state of facts tbe Supreme Court of Texas seems to have modified this ruling. Bourland v. R. R., 99 Texas, p. 407. Tbe digest of tbis case as it appears in 122 Anno. State Reports, being in part as follows: “Tbe rule that damages of a special or exceptional kind for delay in tbe shipment of goods cannot be recovered in tbe absence of notice to tbe carrier at tbe time of making tbe contract of carriage of tbe particular conditions under which tbe damages are likely to arise as tbe result of tbe delay is not unbending nor applicable to every case.” Tbe question is not free from difficulty, nor is it necessary to determine it on tbe present appeal, for numerous and well considered decisions in tbis jurisdiction are to tbe effect that for breach of duty in reference to a contract of carriage, on tbe part of common carrier doing business under a corporate franchise, one having a right by contract to enforce performance, may recover damages for a tort and have tbe relief administered and bis rights determined as in that class of actions. Williams v. R. R., 144 N. C., pp. 498-505; Purcell v. R. R., 108 N. C., p. 414; Bowers v. R. R., 107 N. C., p. 721. In Purcell’s case, and on tbis question, it was held: “1. It is tbe duty of a common carrier to provide sufficient means of transportation for all freight and passengers which its business naturally brings to it, and an unusual occasion by which a greater demand upon it is temporarily made will not relieve it of tbe obligation, if by tbe use of reasonable foresight, it could have been provided for. 2. A person who has sustained injuries by reason of tbe failure of a railroad *154company to provide proper means of transportation or operate its trains as required by tbe statute (Code, sec. 1963), may bring an action on contract, or in tort, independent of tbe statute.”

And in Bowers’ case, supra,, tbe ruling was as follows: “1. A complaint alleging that tbe defendant, a common carrier, failed to safely carry certain articles of freight according to contract, and 'so negligently and carelessly conducted in regard to tbe same tbat it was greatly damaged,’ states facts sufficient to constitute a tort,” and in Williams’ case, supra, Associate Jusiice Walicer, for the Court, said: “It is established, therefore, by tbe authorities tbat when tbe carrier has wrongfully set tbe passenger down short of or beyond bis destination, or has failed to stop for him, and has thereby imposed upon him tbe necessity of reaching bis destination by other means, the carrier must respond in damages for tbe wrong, whether tbe action be brought for tbe breach of tbe contract or for tbe tort, and tbe rule applies in this case if tbe plaintiffs presented themselves at tbe proper place and gave tbe required signal at such time as enabled tbe engineer to stop tbe train for them at tbe station,” citing 3 Hutchinson on Carriers (3 Ed.), sec. 1429. There is nothing in the record which confines the plaintiff to recovery for a breach of contract. On the contrary, tbe entire facts are set out by tbe pleader, including specific statement of tbe special damages claimed. And in various sections of tbe complaint tbe delay is alleged to have been caused by tbe carelessness and negligence of the defendant company and its agents. In such case tbe plaintiff, if the facts justify it, may recover on tbe theory of tort or contract. Speaking to this question, in Williams’ case, supra, it is further said: “All forms of action are abolished, and we have now but one form for the enforcement of private rights and the redress of private wrongs which is denominated a civil action, and the Court gives relief according to tbe facts alleged and established.” In tbe case of Hansley v. R. R., 117 N. C., p. 570, a case much relied upon by tbe defendant, tbe Court chiefly considered and passed upon the right of a passenger, on a breach of contract of carriage by a common carrier, to punitive or exemplary damages and tbe question involved in this *155appeal was not directly presented. While the reasoning of the principal opinion in Ha/nsley’s case is favorable to defendant’s position, the decision of the Court, reaffirming, as it did, Purcell’s case, supra, which was an action in tort for like cause, is in support of our present ruling. The plaintiff then had a right to sue in tort, and, if his cause of action is established, recover damages under circumstances existent at the time the same was committed and the evidence offered, tending as it did to show conditions affecting the measure of his recovery, /should have been received. There is nothing here said which is intended to militate against the ruling of this Court, in Helms v. Telegraph Co., 143 N. C., p. 386, and other cases to same effect, “That a party who is not mentioned in a telegraph message or whose interest therein is not communicated to the company, cannot recover substantial damages for mental anguish.” In Helms’ case the contract had been finally broken and the same was no longer in the course of performance, and the question at issue being the amount of damages for “mental anguish,” the personality of the party and his relationship to the subject of the message was of the- substance and must be made to appear. But the principle does not necessarily obtain when redress is sought for breach of a business contract in which, as stated, the personality of the nominal parties in no way affects the matter. In such case, as heretofore said, the rights of the parties may be shown and dealt with under the ordinary doctrine that an undisclosed principal may avail himself of rights acquired by the contract of his agent. For the error in rejecting the evidence offered, the plaintiff is entitled to a new trial and it is so ordered.

New trial.

Concurrence Opinion

BROWN, J.,

concurring in result. The damages recoverable in an action for a breach of contract are such as naturally flow from the breach and such special and consequential damages as are reasonably presumed to have been within the contemplation of the parties at the time the contract was entered into. Williams v. Telegraph Co., 136 N. C., 82; Johnson v. R. R., 140 N. C., 574. And the same rule is applied in actions for the *156negligent omission in tbe performance of a public duty growing out of contract. Lee v. R. R., 136 N. C., 533, delay in transportation of freight; Williams v. Telegraph Co., 136 N. C., 82, negligence in transmitting and delivering message; Hansley v. R. R., 115 N. C., 602, delay in carrying passenger. But a different rule is applicable when the cause of action is based upon a pure tort resulting in a wrongful invasion of plaintiff’s rights of person or property. Then he may recover all such' damages either direct or consequential, as flow naturally and proximately from the trespass. Johnson v. R. R., supra; Gwaltney v. Timber Co., 115 N. C., 579; Hatchell v. Kimbrough, 49 N. C., 163.

In an action based upon such a tort, reasonable foresight is essential to original liability, but it has no place in determining to what consequences the liability shall attach. Drum v. Miller, 135 N. C., 204.

In Lewark v. R. R., 137 N. C., 383, an action for damages resulting from delay in transportation, this Court states the rule to be: “When one violates his contract he is liable for such damages as are caused by the breach, or such damages, as being incidental to the breach as the natural consequence thereof, may have been in contemplation of the joarties when the contract was made.” In Development Co. v. R. R., 147 N. C., 503, Mr. Justice Holte says: “Consequential damages are only recoverable when they are the natural and probable consequences of the carrier’s default. 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.” This was said in an action for negligent delay in transjwrtation of freight, which was treated by the learned judge as a breach of contract, or tort growing out of contract, as was done in Lee’s case, in Ijewarlc’s case and numerous other cases decided by this Court.

The error in the opinion of the^court in the present case, I think, is in assuming that notice by the plaintiff of the particular damages and subsequent delay created a liability independent of the contract entered into by Gurganus and the defendant. The plaintiff’s right to sue is determined upon prin*157ciples of tbe law of agency in tbe creation of a contract, and yet it is suggested by tbe court tbat tbe damages should be assessed upon tbe basis of a pure tort resulting from tbe breach of an independent duty owed plaintiff. Plaintiff’s rights having grown out of tbe contract, tbe amount of damages recoverable should be determined by tbe rule laid down by this Court in actions based upon tort growing out of contract. Applying tbat rule plaintiff could only recover such damages as were in tbe contemplation of tbe parties at tbe time tbe contract was entered into. All tbe cases since Hadley v. Baxendale fix tbe time tbe contract was made as tbe time when notice of special damages should be given. Lee v. R. R., and cases cited supra. In Hansley v. R. R., 115 N. C., 602, which by express terms overrules Purcell v. R. R., 108 N. C., 414, quoted in the Court’s opinion in this case, it is held tbat: “Tbe amount recoverable for a breach of contract of carriage is limited to tbe damage supposed to have been in contemplation of tbe parties and actually caused by such breach; and tbe measure of damage is ordinarily not materially different whether tbe defendant fails to comply with tbe contract through inability or wilfully disregards it.” And this is said by tbe Court, in tbat case, to be tbe rule whether tbe passenger sues for a breach of contract or in tort for tbe disregard of tbe duty of tbe carrier to tbe public. Tbe result reached in Purcell v. R. R., was subsequently approved in Hansley v. R. R., 117 N. C., 565, on petition to rehear. “But tbe judgment in tbat case,” says tbe Court, “should be put upon tbe ground tbat tbe defendant treated Purcell with indignity and contempt in rushing by tbe station at faster speed, when there was room for tbe passengers, or at least when there was evidence tending to show this.”

Tbe former decision in tbe Hansley case, tbat for negligent failure to transport a passenger to bis destination, tbe passenger’s right of action is ex contractu and not in tort, is affirmed.

In Kennon v. Telegraph Co., 126 N. C., 232, tbe present Ghief Justice says: “It is immaterial under our system of practice whether tbe action is in tort for tbe negligence in tbe discharge of a public duty or for breach of contract for prompt delivery, for tbe recovery in either case is compensation for tbe *158injury done tbe plaintiff and which was reasonably in contemplation of the parties as the natural result of the breach of the contract or default in discharging the duty undertaken.”

The plaintiff’s action in this case, being based upon breach of contract or tort growing out of contract, and the damages being restricted to such as were in the contemplation of the parties when the contract was made, the evidence of notice of special damages was properly excluded. Such notice cannot affect the liability of the parties after the performance of the contract has been entered upon. But if such evidence is admitted the sainé result must follow, because it would be the duty of the court to instruct the jury that the notice given was insufficient to charge the defendant with liability for special damages. Where the testimony with regard to notice is .uncontradicted and is clear and distinct, the question of the sufficiency of the notice is for the court. R. R. v. Johnson & Fleming, 94 S. W. (Tenn.), 600.

“It may be stated as the well settled rule,” says Hutchinson on Carriers, sec. 1367, “that special damages can be recovered from the carrier when the transportation has been delayed only where it is shown that the shipper informed the carrier, at the time the contract was made, of the special circumstances requiring expedition in shipment. And although the carrier may have been notified of such special circumstances in time to have prevented a delay, if such notice was given after the contract of transportation had been entered upon, it would not operate to modify the contract or subject the carrier to liability for special damages arising from a subsequent delay. The fact that the carrier was notified of the special circumstances demanding greater diligence is thus seen to be a crucial one, and that the carrier was so informed must be alleged and proved.”

“Notice to a carrier, after goods have been shipped, of circumstances which render special damages a probable result of a delay in their delivery, does not operate to modify the original contract so as to render the carrier liable for such damages, even in the event of a subsequent unreasonable delay.” Bradley v. R. R., 94 Wis., 44.

In R. R. v. Johnson & Fleming, 94 S. W., 600, Chief Justice Beard, of the Supreme Court of Tennessee, says: “Notice to the *159carrier, after goods bare been shipped, of circumstances which render special damages a probable consequence of delay, does not affect the original contract so as to render the carrier liable, although the subsequent delay is unreasonable.” Upon facts similar to those presented in our case, the Wisconsin Court, in Bradley v. R. R., supra, says: “It is only necessary to apply a familiar principle of law in order to answer these questions. No principle of law is more firmly established than that actual damages for a breach of contract are limited to such as may be reasonably considered to have been in contemplation by the parties at the time of such contract, as the probable result of a breach of it. Such principle rules this case unless there is some exception thereto which will fit the special circumstances found by the jury and expressed in the questions submitted. That was obviously the view the learned circuit judge took of the matter; hence the necessity for the second question, i. e., did notice to the appellant of the circumstances which rendered the damages found by the jury a probable result of the late delivery operate to modify the original contract between the parties so as to make the appellant liable in damages? Counsel for the respondent failed to bring to our attention any authority to sustain such exception to the general rule, and, indeed, we are satisfied that none can be found, and that the exigency of this particular case is not sufficiently serious and pressing to warrant us in disturbing the settled law regarding the subject, as counsel suggests that we should do.”

The case of Bourland v. R. R., 99 Texas, 407, is not authority for the position suggested in the opinion of the Court. It is held in that case that where notice of such circumstances as will occasion special damages is given the carrier after the contract to carry has been performed, and after the goods have accordingly arrived at their destination and are ready to be delivered, he will be liable for such special damages if he negligently fails to make delivery of the goods. In* this case the Supreme Court of Texas accepts the decision in R. R. v. Belcher, 89 Texas, 428, as containing a correct statement of the law upon the question of liability for special damages where notice is given after the contract has been made and transportation commenced, but *160before the shipment reaches destination. In the Belcher case it is held that such notice is insufficient to charge the carrier with special damages. Justice Williams, writing the opinion in Bourland v. R. R., adverts to the suggestion made by Baron Bramwell, in Gee v. R. R., 6 H. & N., 217, referred to in the opinion of the Court and says: “The decisions have been to the contrary in cases of this character which have come to our attention, where it became necessary to pass upon the point.” This dictum in the Gee case is referred to in section 158 of Sedgewick’s work on Damages, and after quoting the language of Baron Bramwell, the author says: “The majority of the Court, however, took a different view. And, however reasonable the view may be in itself, another rule is firmly established. Hadley v. Baxendale, as we have seen, held that damages for breach of contract were limited to such as were either normal or communicated at the time of the contract.” Sedgewick further says, see. 159: “Notice must form the basis of a contract. It appears that the notice must be more than knowledge on the defendant’s part of the special circumstances. It must be of such a nature that the contract was to some extent based upon the special circumstances. This appears from the language of the courts in many cases where the subject is discussed. In Smeed v. Foord, Campbell, C. J., doubted whether notice could have any effect in changing the rule of damages, unless it formed part of the contract. In British Columbia S. M. Co. v. Nettleship, Willes, J., said: “The mere fact of knowledge cannot increase the liability. The knowledge must be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it.” In Booth v. Spuyten Duyvil R. M. Co., Church, C. J., stated, as his opinion, that notice of the object of the contract would not, of itself, change the measure of damages, “unless it formed the basis of an agreement.” Proof of notice, of course, cannot be received to vary the contract, which always speaks for itself; it is merely an attendant circumstance, which, like any other matter in evidence, affects the consequences of the breach and the measure of recovery.

*161Hadley v. Baxendale lays no stress on tbe question whether the contract was founded upon or influenced by the notice; but the weight of recent authority seems to be in accordance with these opinions, to the effect that the notice must be such as that the contract was in some degree founded on it. The defendant sold goods to rig a vessel, and damages wore claimed for loss of use of the vessel. The Supreme Court of Michigan said: “To create such extraordinary liability, there must in every case be something in the terms of the contract, read in the light of the surrounding circumstances, which show an intention on the part of the vendor to assume an enlarged engagement, a wider responsibility than is assumed by the vendor in ordinary contracts for the sale and delivery of merchandise.”

In this case the defendant is notified, after entering upon the performance of the contract, that the special damages would result, and was for the first time notified that such damages would result to a company whose name nowhere appears in the contract of shipment and whose existence was probably unknown to the defendant. If such notice is sufficient to charge the defendant with liability for special damages, then the great case of Hadley v. Baxendale has power only to vex unsuspecting parties who regard its principles as established and enforcible in our courts.

The facts are not sufficient to bring this case within the decision of Lumber Co. v. R. R., 151 N. C., 23, and other cases in this Court, charging the carrier with special damages for delay upon the ground that the character and circumstances of shipment were sufficient to give notice of such damages. There was nothing about this shipment to give the defendant the slightest intimation that the plaintiff company intended to conduct a peanut-cleaning business, and had employed hands to install and operate the machinery and had rented a house for that purpose. It was reasonable for the defendant to suppose that Gurganus was receiving the machinery for sale to another party, or that he was receiving it as agent for the shippers. In fact the purpose for which the shipment was intended was a pure matter of conjecture to the defendant.

*162The Lumber Company case presented tbe following combination of facts wbicb this Court said was sufficient to go to the jury upon the question of notice of special damages: (1) Plaintiffs name, indicating the character of business engaged in by it ; (2) the nature of the article shipped, to-wit, an edger, a machine used by saw mills, weighing about 1,000 pounds, indicating an article not of general use, but for particular purpose; (3) that the machine was shipped unboxed, uncovered and open, and thus observable by the defendant; (4) being a single machine, indicating that it was intended to be used in conjunction with other machinery; (5) the destination, being a section in which lumber was manufactured. A mere enumeration of these conditions destroys that case as an authority upon which to submit to the jury the question of special damages in this ease.

For wrongful delay in the transportation of goods having a market value the damages usually supposed to be in contemplation of the parties is the difference in value of the goods at the time when they should have been delivered and when they were delivered. In the absence of appreciable loss, the interest on the money invested in the goods themselves for the time of the delay would be the correct measure. Lee v. R. R., 136 N. C., 533; Development Co. v. R. R., 147 N. C., 503. If the jury should find in this case that the plaintiff has been injured by the negligence of the defendant, the measure'of damages should be fixed by the principle of these cases. Upon the evidence as now presented the plaintiff is not entitled to special damages. However, his Honor was in error in instructing the jury that the plaintiff could recover only nominal damages, for which there should be a new trial.

Walker, I., concurs in this opinion.

Concurrence Opinion

AlleN, J.,

concurring. A bill of lading is “a written acknowledgment by the common carrier of the receipt of certain goods and an agreement, for a consideration, to transport and to deliver the same at a specified place to a person named or to his order.” Elliott on R. R., Yol. IY, sec. 1415.

It is then both a receipt and a contract, and there are but two stipulations in the contract: 1. To transport. 2. To deliver.

*163If, therefore, the shipper must rely upon the written contract and can only sue for breach of its obligations, he is without remedy if his goods are injured, or if he suffers loss by delay, if they are finally transported and delivered.

The law, however, recognizes that railroad property is in some measure devoted to a public use, and is, therefore, subject to public regulation. As was said by Rodman, J., in Branch v. R. R., 77 N. C., 349: “They are granted great privileges in consideration of the performance of certain duties to the public. They enjoy a virtual monopoly of the carriage of freights within a certain distance. There could not be a clearer case of private property devoted, for a valuable consideration, to a public use, and consequently subject to public regulation.”

“He (the common carrier) exercises a public employment, and has duties to the public to perform.” York Co. v. R. R., 70 U. S., 112.

“Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the public at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.” Munn v. Illinois, 94 U. S.

“Railroads are common carriers and owe duties to the public.” Joy v. R. R., 138 U. S., 51.

These duties to the public are sometimes enforced by statute and sometimes by the principles of the common law, and they are independent of contract.

“The duties of the common carrier as such do not rest upon contracts, but are imposed by law.” Elliott on R. R., Vol. IV, sec. 1454.

“The liability oi a common carrier does not rest in his contract, but is a liability imposed by law. It exists independently of contract, having its foundation in the policy of the law, and it is upon this legal obligation that he is charged as carrier for the loss of property,-intrusted to him.” Merritt v. Earle, 29 N. Y., 122.

*164What then are the duties imposed by law on a common carrier, wbo bas received freight for transportation?

There are two: (1) To carry safely. (2) To deliver within a reasonable time.

The extent of the liability as to the first duty is clearly stated by Justice Brown in Hollingsworth v. Skelding, Receiver, 142 N. C., 247. He quotes the following extract from the opinion of Chief Justice Faircloth, in Daniel v. R. R., 117 N. C., 602: “Carriers of passengers are insurers as to their passengers, subject 1° a few reasonable exceptions. They are held to exercise the greatest practicable care, the highest degree of prudence, and the utmost human skill and foresight which has been demonstrated by experience to be practicable. They are so held upon the ground of public policy, reason and safety to their patrons. The exceptions are the act of God and the public enemy. If these be the proximate cause, and without any neglect on the part of the carrier, the carrier is not liable. He is against all perils bound to do his utmost to protect and prevent injury to his passengers,” and after holding that this is erroneous as applied to passengers, he says: “The rule laid down by the late Chief Justice applies to the transportation of freight and all classes of inanimate objects only.” It should be added that there is no liability on the carrier if the injury is caused by the negligence of the shipper, or is due to the inherent qualities of the articles transported.

The second duty imposed by law is to deliver within a reasonable time, and a failure to do so is negligence. Boner v. Steamboat, 46 N. C., 216. The distinction as to the (degree of liability in the performance of these duties is clearly stated by Pearson, Chief Justice, in Boner v. Steamboat Co., supra. He says: “It is said that the defendants are common carriers, and in regard to them the law makes an exception, and holds them liable as insurers, except against the act of God, and the Ring’s enemies. This is so; and the question is, does.their liability as insurers extend to the time of delivery? or is it confined to the safe delivery of the goods? The case before the Court, when Lord Holt delivered his famous opinion, concerned the safe delivery *165of goods, and nothing was said in regard to the time of' delivery; so that our question was left open. The reason for making an exception in regard to the safe delivery of goods, in the ease of a common carrier is, that it was a matter of public policy, in order to guard against fraud and conspiracy, by which, through ‘covin and collusion’ the carrier might ‘contrive to be robbed and divide the spoils.’ It is evident that the reason for holding the common carrier liable for the safe delivery of goods has no relevancy or bearing upon the question of his liability as to the time of delivery; so there is no rule of policy making an exception in regard to the time of delivery. That falls under the general rule by which, when both parties are benefited, the bailee is liable for ordinary neglect.”

On account of the fact that the goods are in possession of the carrier, and the shipper cannot go with them, and cannot know what the conduct of the carrier is, proof of delay makes out a prima facie case of negligence, and it is incumbent on the carrier to excuse the delay. Parker v. R. R., 133 N. C., 340.

¥e have then in the case of a shipment of freight, a contract between the shipper and the carrier, by which the carrier has agreed to transport and to deliver, and the law has imposed on the carrier the duty to carry safely, and to deliver within a reasonable time, and our next inquiry is, what is the remedy for a breach of the duty imposed by the law? I think the shipper may, at his election, sue in contract or in .tort. He may treat the obligations imposed by law as entering into and becoming a part of the contract of carriage, in which event his action would be for breach of contract, or he may sue for a breach of the public duty, which has caused him special damage, and his action would be in tort. Elliott on E. E., Yol. IY, sec. 1693, says: “Where there is a breach both of contract and of duty imposed by law, as in case of loss or injury by a common carrier, the ifiaintiif may elect to sue either in contract or in tort.”

We are not Avithout authority in our State that an action for a breach of duty imposed by laAv is in tort, and that in many cases, on the same facts, a party may sue in tort or contract.

In Robinson v. Threadgill, 35 N. C., 41, and in Bond v. Hilton, 44 N. C., 308, Nash, Chief Justice, says: “Where the law, *166from a given statement of facts, raises an obligation to do a particular act, and there is a breach of that obligation, and a cohsequential damage, an action on the case founded on the tort is proper,” and in Williamson v. Dickens, 27 N. C., 265, although the plaintiff could have sued in contract, he was allowed to sue in tort, and thereby avoid the defense of a discharge in bankruptcy.

These cases are approved in Solomon v. Bates, 118 N. C., 315.

It appears, therefore, that the property of the common carrier is affected with a public use; that out of this grows the power to regulate the performance of its obligations; that in the exercise of this power the law has imposed the duty when it undertakes to transport freight to carry safely and to deliver within a reasonable time; and that an action to recover damages for a breach of duty imposed by law is in tort.

This duty, as it seems to me, does not arise out of contract, but is imposed because the carrier has devoted its property in part to a public use. If so, I think the rule laid down in the opinion of the court is just, and with the limitations imposed, no hardship can arise from its application.

It requires notice to be given to the carrier, while the goods are in its possession, of the facts out of which the special damages will arise, and gives it a reasonable time after notice within which to deliver, and the carrier is not liable for the special damages unless, after notice and under the conditions then existing, it negligently fails to deliver.

The expressions in different opinions opposed to this view are based upon the case of Hadley v. Baxendale, which has been quoted with approval so often that it approaches rashness to question it.

I may suggest, however, that it is stated in the opinion in that ease that “the only circumstances here communicated by the plaintiff at the time the contract was made were that the article to be carried was the broken shaft of a mill, and that the plaintiffs were the millers of that mill,” while the report of the case, as contained in Eng. Rul. Cases, Yol. Y, p. 503, shows that “the plaintiffs’ servant told the clerk that the mill was stopped and that the shaft must he sent immediately, and in answer to the *167inquiry wben the shaft would be taken, the answer was, that if it was sent up by 12 o'clock any day, it would be delivered at Greenwich the following day. On the following day the shaft was taken to the defendant before noon, and at the same time the defendant’s clerk was told that a special entry, if required, should be made to hasten delivery ”

It was held that the notice was not sufficient to charge the defendant with special damage. I doubt if this ruling would be sustained to-day, and think the evidence indicated that there was a contract to deliver within a particular time. The decision was rendered in 1854, within thirty years after the first steam railway began to operate in England, when railroading was in its infancy, and the facilities for transportation were limited, and while the rule adopted as to damages for breach of contract generally ought to be adhered to, it is doubtful if it was intended to apply to the contracts of common carriers under the conditions existing to-day.

It was then important for the carrier to know, at the time the goods were received, the circumstances requiring diligence, that it might prepare to meet them, while to-day the carrier is required to receive goods tendered for shipment and to be prepared to transport.

The carrier has the goods in its possession; is in the performance of a duty that is continuous until delivery, and has or ought to have the facilities for transporting, and it has the opportunity of avoiding loss by exercising reasonable diligence. It would seem that it ought to be held to this degree of responsibility.