
    Sherman Ward et al., Appellants, v. The New York Central Railroad Company, Respondents.
    In the absence of any special contract, the law implies an agreement upon the part of a common carrier to transport merchandise within a reasonable time. If he negligently omits so to do, and the market value of the merchandise falls, the measure of damages is the difference in its value at the time and place it ought to have been delivered and at the time of its actual delivery.
    (Argued November 22, 1871;
    decided December 19, 1871.)
    Appeal from judgment of the General Term of the Supreme Court of the eighth judicial district, affirming a judgment in favor of defendant entered upon the report of a referee.
    The plaintiffs were copartners in business, and on the 9th day of December, 1867, shipped by defendants from Le Roy, in Genesee county, to their consignees in Hew York, seventy-eight dressed pigs, weighing 9,182 pounds, the property of plaintiffs, which, in the ordinary and usual course of transportation, should have reached Hew York in forty-eight hours. Such property was unnecessarily detained by the defendants and did not reach the city of Hew York until the 26th day of December, 1867. In the meantime the market price had fallen an average of one and one-half cents per pound. This action was brought to recover damages for the neglect to transport the same within a reasonable time; it was tried before a referee, who held that the plaintiffs were not entitled to recover for the decline in market value, and ordered judgment for defendants.
    
      
      W. F. Coggswell for appellants.
    Plaintiff was entitled to recover his loss by the depreciation in the market value of the property after the time it should have been delivered. (Kent v. Hudson River R. R. Co., 22 Barb., 278; in Medberry v. New York and Erie R. R. Co., 26 Barb., 564; Brackett v. McNair, 14 Johns., 110; and Leonard v. Telegraph Co., 41 N. Y., 544; Griffin v. Colver, 16 N. Y., 489 ; and Scovill v. Griffith, 2 Kernan, 509; Collard v. South-eastern Railway Co., 7 Hurl & N., 79; Wilson v. Lancashire and Yorkshire Railway Co., 99 Eng. Com. Law, 632; Same v. New Castle and Berwick Railway Co., 18 Eng. Law and Eq., 557, 559; O'Hanlon v. Northern R. R. Co., 6 Best & Smith, 484; Ingledew v. Northern R. R. Co., 7 Gray, 86; Smith v. New Haven and Northampton Railway Co., 12 Allen, 531; Cutting v. Grand Trunk R. R. Co., 13 Allen, 381; Weston v. Grand Trunk R. R. Co., 54 Maine, 376; Hackett v. Boston, Concord and Montreal R. R. Co., 35 N. H., 390; King v. Woodbridge, 34 Vermont, 565; O'Conner v. Foster, 10 Watts, 418; Sisson v. Cleveland and Toledo R. R. Co., 14 Mich., 489 ; Peet v. Chicago R. R. Co., 20 Wis., 594; Whalen v. Aldrich, 8 Minn., 346; Davies v. Shields, 24 Wendell, 322; Clark v. Pinney, 7 Cowen, 681; Priestly v. Northern Ind. and Chicago R. R. 26 Ill., 205 ; Sedgwick on Damages, 4th ed., 401; 1st ed., 355.) The rule of damages is the same whether the goods were shipped to be sold in the market or not. (Cutting v. Grand Trunk Railway Co., 13 Allen, 381, and cases there cited.) The defendant is liable, although the delay occurred upon its connecting road. (Laws of 1847, chap. 270, § 9, p. 299; Foy v. Troy and Boston R. R. Co., 24 Barb., 382; Muschamp v. Lancaster and Breton Junction Railway, 8 Meeson and Welsby, 421; Nashua Lock Co. v. Worcester and Nashua R. R. Co., 48 N. H., 339, and cases therein cited.)
    
      M. W. Gooke for respondent.
    The burden of proof as to error is with the appellants. (Chubbuck v. Vernam, 42 N. Y., 432.) The contract was for transportation to Albany only
      (Root v. Gt. W. R. R. Co., Ct. Aps. not yet reported, Rapallo, J.; Pendergast v. Adams Ex. Co., 101 Mass., 120.) The diminution in the market price of the goods was not the true measure of damages. (Wibert v. N. Y. and E. R. R. Co., 19 Barb., 36; Jones v. N. Y. and E. R. R. Co., 29 Barb., 633 ; Conger v. H. R. R. R. Co., 6 Duer., 375, 381, 382, and cases cited below in argument; Griffin v. Colver, 16 N. Y., 489 ; Sedgwick on Meas. of Dam., 4th ed., chap. 3, p. 81, note 1; p. 406, note. 3 ; Hamilton v. McPherson, 28 N. Y. Rep., 72, 77; Hadley v. Baxendale, 9 Exch. Rep., 341; Hales v. London and North-western R. Co., 4 B. & S. 66, op. of Lord Cockburn, C. J.; Briggs v. N. Y. C. R. R. Co., 28 Barb., 515, 521, op. of E. Darwin Smith, J.; Smeed v. Ford, 1 Ellis and Ellis, 602, and 28 L. J., N. S., 178 ; Gee v. The Lancashire and Yorkshire R. Co., 6 H. & N., 211; Great Western R. Co. v. Rodmayne, 1 Law Rep., C. P., 329 ; Kent v. H. R. R. Co., 22 Barb., 278; Medbury v. N. Y. and E. R. Co., 26 Barb., 564; Leonard v. N. Y. and Tel. Co., 41 N. Y., 544; Collard v. S. E. R. Co., 99 Eng. C. L., 632; Smith v. N. H. and W. R. Co., 12 Allen, 531; King v. Woodbridge, 34 Vt., 565 ; Wilbert v. N. Y. and E. R. R. Co., 19 Barb., 36; Jones v. The Same, 29 Barb., 633 ; Conger v. H. R. R. R. Co., 6 Duer, 375, 301, 381.
   Peckham, J.

It is insisted by the defendant, that it is not liable for any damages happening to this property after it reached Albany and was placed in the custody of the Hudson River road for further transportation, because the contract for transportation showed that its liability as common carrier ceased at Albany. The answer to this is, that the referee finds expressly, that “ the defendant received this property of plaintiffs for transportation to the city of Hew York,” and the whole evidence is not contained in the case. Only a small part is retained, and then the case adds that evidence was introduced by the parties, from which the referee found the facts which appear in his report.” Under such circumstances it cannot be said that the referee has found this fact without any evidence to support it. We are bound to presume that there was sufficient evidence.

The facts as found present the distinct question, what is the measure of damages against a carrier who has negligently omitted to deliver the goods at the time he ought to have delivered them ?

Where a contract has been violated the law intends to give to the party injured the damages caused thereby; that is, the natural and proximate damages caused by the breach. It is supposed that both parties contemplated the consequences of such breach at the time they made the contract, and acted accordingly both in making and in performing or violating its provisions. (Griffin v. Colver, 16 N. Y., 489, and cases there cited.)

Where a carrier from mere negligence, from plain violation of duty, omits to transport merchandise beyond a reasonable time and its market value falls in the meantime, the true rule of damages in my judgment both upon principle and authority, is the difference in its value at the time and place it ought to have been delivered and the time of its actual delivery. The rule is simple, and though it may sometimes operate harshly, easily applied.

Sagacious business men rely upon their ability to judge of the market in undertaking large commercial projects. According to their views of the market, they send their merchandise by a quick or by a slow carrier, and make compensation accordingly.

A contrary rule would deprive them of all benéfit of a rapid transit. It would be left to the caprice of the carrier when to transport, and the owner could have no relief. It would be no answer to say that the owner might make a special contract for the transport at a given time. The contract would have to contain a special provision to pay these ■damages or the carrier’s liability would not be altered. If a special contract be needed, I think it falls upon the defendant to make it, or the company will be liable for not delivering in a reasonable time.

If the earner would be liable for these damages upon a special contract to transport by a given time, he clearly would be for a violation of his duty. In the absence of any special agreement, the law implies that the carrier agrees to transport in a reasonable time. That is his duty. In failing, to do so, he not only violates his duty, but also the contract upon which it is based. The only legal difference is that, by the special contract, the carrier agrees and is required absolutely to transport by a given time. In such case, no excuses will save him from damages for a breach such as will entirely shield him in the absence of a special agreement. (Red. on Rail., 161-3, 273; Harmony v. Bingham, 12 N. Y., 99.)

It is well settled law that a carrier, on an entire failure to deliver, is liable for the market price of the goods at the time and place for delivery. (O’Hanlon v. North. R. R. Co., 6 Best. & Smith, 484; Bracket v. McNair, 14 J. R., 170.) So held at the present term of this court. (Sands v. Lilienthal, 46 N. Y., 541.) So as to a sale of goods. For all damages to the property while in the custody of the carrier, the measure thereof is to be settled by the market at the place for delivery. This is clearly so as to all inland carriage. See the last case. (Bracket v. McNair, 14 J. R.; supra, 45 Barb., 502.)

If liable for the market price at the time and place for delivery where not delivered at all, it would seem equally rational that if by reason of the inexcusably negligent delay of the carrier, the value of the goods has depreciated in market, he should be liable to the owner to the extent of that depreciation. The purpose of the law is to make the owtier whole in each case.

There is an elaborate opinion in favor of the defendant in Wibert v. The N. Y. and E. R. R. Co. (19 Barb., 36), but the point was not necessarily decided. The referee obviously erred in finding the road guilty of negligence in not forwarding the goods. The same opinion was reiterated by the same court in 29 id., 633. With this exception I am not aware-of any decision in that direction here or elsewhere. The chief objections urged against this rule are that the damages are not proximate, but remote, if any damages at all; that in fact the delay is not the cause of the damage; it did not cause the fall; that the goods being delivered in good order, the loss caused by the fall in the market cannot be charged to the carrier as damages; that markets are fluctuating and uncertain.

Had the goods been injured by reason of improper exposure by the carrier, and thus had become depreciated in their market value, it is clear that the carrier would be liable for the loss. It was*his negligence that caused it. Here his negligent delay caused the loss. It did not cause the decline in the general market, but it deprived the owner of his right to the higher market price. The defendant’s negligent violation of its duty thus deprived the plaintiff of his right, and placed this loss upon him. In substance, this loss is the same to the plaintiff as if the injury had been done to the property itself and thus diminished its market value. The injury also is natural and direct. There is no second step; no action of the owner with a third person by contract or otherwise. It is true there are fluctuations in the market. They prevail to some extent as to all commodities which are the. subject of transportation.

That is not a sufficient reason for abolishing their use in ascertaining the rights and liabilities of parties. Confessedly they regulate the rights of parties where there is an entire failure to deliver either by a carrier or by a vendor. Legally they are the true measure of the value of the goods. Arriving so late, later by the carrier’s negligence, these goods were not worth as much as at the time they should have arrived; not so much when measured by the rule that governs the commercial community. Their actual value was less when measured by the only standard that regulates values.

Why should not the defendant pay this loss its negligence has caused ? The rule as here claimed is decided to be the true one, in Kent v. Hud. R. R. Co. (22 Barb., 278); in Medbury v. N. Y. and E. Road (26 Barb., 564). It is fully recognized in Griffin v. Colver (16 N. Y., supra). It is so decided in England, in Collard v. S. E. Railway Co. (7 Hurl. & N., 79); in Wilson v. The Lancashire and York Rail. Co. (99 Eng. C. L., 632); Same v. N. Castle and Ber. R. Co.. (18 E. L. & E., 557). In one of these cases (Wilson v. The New Castle and Ber. R. Co.) the contract required the merchandise to be transported by a certain time, but was silent as to paying any damages. It is also so held in many of our sister States. (Cutting v. Grand Trunk R. R. Co., 13 Allen, 381; Sisson v. The Cl. and Tol. R. R. Co., 14 Mich., 489.)

But if this be not the true rule as to the measure of damages, what is ?

Wibert v. The Erie Road gives no aid upon this point. That holds substantially that the road is not responsible for such a loss. It is damnum absque injuria. It in effect holds that the road’s neglect, whereby the goods are delayed and subjected to a fallen market, and the owner to that loss, is no legal injury. We all think otherwise, and that this is the only rule that does justice between the parties.

It is urged, however, that there was no evidence that this property was sent to Hew York to be sold in market; none that it was actually sold at a loss.

From the findings of the referee, I think it clear that the plaintiff had sustained these damages, resulting solely from a fall in the market pricebut he held that such damages were not recoverable.

If the plaintiff sold the goods in a brief time after their arrival, without sustaining any loss, that would be matter of defence; thus showing that the fall was a mere momentary fluctuation in the market, and that the delay really did not injure the plaintiff.

The rule is undoubtedly somewhat stringent; hence the proof of negligence in this respect should be quite clear.

There are many circumstances that would excuse a carrier from transporting in the time usually required for an ordinary passage; an unusual crowd of freight, storms or freshets, etc., etc. (2 Red. on Rail., 261, § 173, and cases in note.)

Judgment should be reversed and new trial ordered, costs to abide the event.

All concur.

Judgment reversed.  