
    
      Caleb H. Nettles vs. The So. Ca. Railroad Company.
    
    Common carriers are bound to deliver goods witbin a reasonable time, and if they fail to do so, without disproof of negligence on their part they are answerable for such damages as were occasioned by the delay.
    In such case, the measure of damages would seem to be, any reasonable loss and expenses which had been occasioned by the delay, together with the value of the goods at the time and place they should have been delivered, deducting therefrom the value according to their condition at the time and place of actual delivery or tender.
    The doctrine of technical abandonment is not applicable to common carriers as to insurers.
    
      Before O’Neall, J., at Charleston, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “ In this case, the plaintiff sued for damages sustained by him in the non-delivery in time of two cases of hats, which the defendants undertook to deliver to Mr. Murray, in Camden, for the plaintiff.
    
      “ The goods were delivered to the defendants to carry about the 12th of May. They did not reach Camden for several months. In the meantime, the plaintiff had sent from his residence in Darlington for them, and could not get them.
    “ In September, they were tendered to him by the Railroad agent in Camden : he refused then to accept them.
    
      “ The goods were then re-shipped to Charleston. They are now in the possession of the defendants, ready to be delivered to the plaintiff. A week is the usual time of transit of goods between Charleston and Camden.
    “The original cost of the hats was $90. The plaintiff’s clerk proved that he would have realized a profit of thirty-three- and-a-third per cent, on them.
    “ They were of wool, and would be much injured by being boxed up for several months.
    “ The jury were told, the plaintiff could not abandon the goods to the defendants — he, the plaintiff, ought to have received them on the tender in September, and claimed the damages which he had sustained from their non-delivery in time.
    
      “ That he was now entitled to recover such damages as the jury might think he had sustained; that they might find any sum short of the value of the goods at the place of delivery.
    “ The jury found $100 damages.”
    The defendants appealed, and now moved this Court for a new trial, on the grounds:
    1. That the verdict is founded on a supposed right of the consignee to abandon his goods, if any delay occurs in the delivery of them, which is contrary to the law, and to the charge of his Honor.
    2. That if the verdict be taken as an estimate of the damage sustained by the plaintiff on account of the delay in the receipt of his goods, the same is without evidence, as the jury have given one hundred dollars for the delay from May to August, in the delivery of two boxes of hats, which cost ninety dollars, and on which plaintiff’s witnesses calculated a probable profit of thirty per cent., and no more.
    Petigrew, for appellant.
    Moiory, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

The defendants were by the contract, which, as common carriers, they made with the plaintiff, bound to deliver the goods in Camden within a reasonable time. (Raphael vs. Pickford, 5 Man. and Gran. 551.) After the expiration of the reasonable time, without disproof of negligence on their part, they became answerable for the wrong of non-delivery; and if nothing more had appeared, the measure of damages would have been the' value of the goods at the place where they should have been delivered, together with any reasonable loss and expenses which had been directly occasioned by the wrong. (Black vs. Baxendale, 1 Exch. R. by Weis., Hurd, and Gord. 410.) But mere non-feasance on the part of the defendants, without any wrongful act of interference, did not amount to a conversion. The goods, even after great delay in the carriage of them, belonged to the plaintiff. When they were tendered to him, he should have accepted them; and thereby the extreme measure of damages would have been reduced, by deduction therefrom of the value of the goods, according to their condition at the time and place of tender. The doctrine of technical abandonment is not applicable to common carriers, as it is to insurers, however plain it may be, that often without either loss or conversion of the goods, carriers may be liable for the whole value, and sometimes for more.

In this case, the defendants do not complain of the instructions which were given to thfe jury, but of the amount of the verdict, which is supposed to be conjectural and excessive. It would have been more satisfactory, if by accepting the goods, the plaintiff had enabled himself to show exactly the deterioration they had sustained. But long before the tender, his right of action had become complete, and no subsequent tender or acceptance could have discharged it. (Bowman vs. Teall, 23 Wend. 306.) The evidence shows that the goods, if delivered according to contract, would, at the place of destination, have been worth $120; that the plaintiff had incurred expenses in sending for them; that by the detention of them they must have been greatly injured; and that, after being refused by the plaintiff, they were by the defendants taken back to the point from which they started. Under these circumstances, the verdict for $100, if not exactly right, is so nearly so, that no interference of this Court would be justifiable.

The motion is dismissed.

O’Neall, Withers, Whitner, Glover and Münro, JJ., concurred.

Motion dismissed.  