
    No. 150
    D. T. & I. RD. CO. v. KISSELL PRODUCE CO.
    No. 19544.
    Supreme Court
    On motion to certify.
    Dock. Jan. 8, 1926;
    4 Abs. 40.
    851. NOTICE — Must notice of circumstances, which would make special damages the probable result of failure to furnish cars, be given to a railway company in order to recover special damages for the company’s failure to furnish cars as agreed?
    Attorneys — George A. Meekison, Napoleon, for Produce Co.
   The Kissel Produce Co. placed an order with the Detroit, Toledo and Ironton Railroad Co., for a refrigerator car on a certain date. The car was to be used for shipping a carload of poultry to Buffalo, N. Y. The car did not arrive on the day specified and the following-day the order was cancelled by the Produce Co. and the poultry was shipped by express.

The Henry Common Pleas rendered judgment against the Railway Co. for $290.73, which was the amount of the difference between the freight and express rates and the cost of transportation to and from storage and storage charges. This judgment was affirmed by the Court of Appeals.

The Railway Co. in the Supreme Court contends that as no notice of special circumstances was given it, special damages cannot be recovered, but only actual damages, which would be determined by the difference in the market value which would have been obtained had the car been furnished and the market value at the same time at the place from which they were to be shipped, less the cost of transportation.  