
    Devereux, Receiver of the Atlantic and Great Western Railroad, v. Buckley & Co.
    If a common carrier is chargeable with knowledge that the article carried is intended for market, and unreasonably delays its delivery, and there-is a depreciation in the market value of the article at the place of consignment, between the time it ought to have been delivered, and the-time it was in fact delivered, such depreciation will, ordinarily, constitute the measure of damages.
    Motion for leave to file petition in error to the District Court of Hamilton county.
    The action in the court of common pleas was against the defendant, as a common carrier, for his failure to speedily and safely carry, and deliver at New York city, eggs, shipped thither by the plaintiffs, over the Atlantic and Great Western Railroad, of which the defendant is receiver.
    It appears from the testimony, all of which is set out in a bill of exceptions, that J. P. Buckley & Co., the plaintiffs-below, were dealers in country produce at Springfield, Illinois, and desiring to make shipments of large quantities of eggs from that point to the city of New York over the Ohio and Mississippi, and the Atlantic and Great Western Railroads, applied to Mr. Stanton, the general agent of theformer road, in March, 1875, for “ time ” on shipping eggs to New York city over the roads named, who, at their request, wrote to Mr. Cochran, general freight agent of the Atlantic and Great Western Railroad, at Cincinnati, for his “ time ” from Cincinnati toNew York city, informing him that the Ohio and Mississippi Railroad could get them to Cincinnati in two days, if the Atlantic and Great Western Railroad could get them to New York city in three days, and asked Mr. Cochran if it was probable he could make that “ time ” over his road. He replied that they could do so without doubt, and to keep him fully advised by telegraph of the shipments, and he would give them his special attention.
    In pursuance of the understanding and arrangement thus made, the plaintiffs made several shipments of eggs-over the route indicated to New York city, commencing-March 25, 1875.
    On the 81st of March, 1875, the plaintiffs shipped thirty barrels, being 2,195 dozen of eggs, from Springfield to-New York city, over the route stated, of which telegraphic-notice was sent in advance to Mr. Cochran by Mr. Stanton.. The eggs were delivered to the Atlantic and Great "Western Railroad, at Cincinnati, on the 2d day of April following, and were retained there for five days, and did not arrive in -New York city until the 14th day of the same-month, instead of the 7th, as per arrangement. The eggs-were delivered to the consignees on the day they arrived, and by them sold on account of the plaintiffs the same-day, at the market price, which was some twelve cents-per dozen lower than the market price at the same place on the 7th of April.
    The defendant failed to answer, and the cause was submitted to the jury on an inquiry of damages.
    The testimony tended to prove all the facts above stated. To all of which the defendant objected, and moved' the-court to exclude it from the jury on the following grounds :
    1. That it does not show that the defendant agreed to-guarantee the price of the eggs in New York city, nor that the eggs in question were shipped to the New York city-market.
    2. Because the price of eggs in New York city has no bearing on the inquiry of damages to be submitted to theJU1T-
    The court overruled the objection, and refused to exclude the testimony from the jury, and the defendant excepted.
    The jury assessed as damages the difference between tho .price of eggs on the day they should have been delivered .and the price on the day they were delivered, for which j udgment was entered for the plaintiffs.
    This judgment was affirmed in the district court, and the plaintiff in error, by this proceeding, seeks the reversal ■of both judgments. •
    
      Durbin Ward, for the motion,
    made the following points :
    1. "Where a shipment is made by a consignor on a rail-Toad, as a common carrier, it is liable for damages to the •consignor only on the contract of shipment, and not otherwise.
    2. That contract embraces no more than is in the mind ■of the parties.
    3. The law, it is true, makes certain presumptions in the .absence of proof as to what must have been in the minds of the parties, and so holds common carriers to certain pe•culiar liabilities without proof of express contract. But whenever it is sought to go beyond these peculiar liabilities ■of the common or statute law, then, like any other person, ■the common carrier is only liable on proof express (or implied from facts, not by law), to be made out by the party -seeking to hold him liable.
    To the claim in this case he said: 1. That, as a principle of law, the common carrier is only bound to make good ■the loss which is the natural and legitimate result of his failure to comply with his contract, and not for remote damages not in the contemplation of the parties contracting. 2. That the railroad company did not agree to guarantee the price of the article shipped at the point of consignment, neither on the day that it ought to have arrived, nor on any other day. 3. The proof does not show that the goods were shipped to any market, nor to be sold at all. 4. We insist that the damages legally arising from ■our negligence are to be measured by the terms of our contract, and not by the varying range of the New York market, and these damages consist in the additional cost, ■if any, to the consignee by the non-arrival of the goods, and we claim that the exact point in this case has been set-■tied in our favor by Headly v. Boxendale, 9 Exch. 341. And see Angell on Car., sec. 282, et seq.; 14 Ill. 156; 19 Barb. 36 ; 18 Eng. L. & Eq. 557 ; Sedw. on Damages, 406, and note; Sedw. on Damages, 72, 73, 74, 78, 79, 80; 1 Disney, 23; 16 N. Y. 489; Ward v. N. Y. Central R. R., 47 N. Y. 29; s. c., 7 Am. 405 ; 2 Kent. Com. 480; Denning v. Gr. Tr. R. W., 48 N. H. 455; s. c., 2 Am. 267; Home v. Midland R. W. Co., 8 Eng. Com Law, 131 (1873) ; Walcot v. Mount, 12 Am. 438 ; Hubbard v. Telegraph Co., 13 Wis. 558; s. c., 14 Am. 775 ; Maineville v. U. S. Telegraph Co., 37 Iowa, 214 ; s. c., 18 Am. 8; Rhodes v. Baird, 16 Ohio St. 573; Seeley v. State, 11 Ohio, 501; Cin. v. Evans, 5 Ohio St. 594; McGregor v. Kilgore, 6 Ohio, 358 ; Louis v. Steamboat Buckeye, 1 Handy, 150; Cincinnati Chronicle Co. v. White Line C. T. Co., 16 S. C. R. 300.
    
      Wrn. E. Imes, contra,
    claimed that the measure of dam.ages should be the loss sustained in the sale of the goods by reason of the delay in shipment. Ward v. Railroad, 47 N. Y. 34; Sisson v. Railroad, 14 Mich. 489; Cutling v. Railroad, 13 Allen, 381; Denning v. Railroad, 48 N. Y. 469 ; Sedw. on Damages (6 ed.) 74, 433, note; Ang. on Carriers, sec. 284; Redfield on Carriers, sec. 29; Field on Damages, 323, sec. 375; Wilson v. Railroad, 99 E. C. L. 632; Peet v. Railroad, 20 Wis. 594.
   G-elmore, J.

The action in the court of common pleas was not brought upon any express or special contract, but to recover damages for a breach of an implied agreement to carry, and deliver at the place of consignment, a large lot of eggs, within a reasonable time, by a common carrier.

By failing to answer, the defendant (plaintiff in error) admitted the breach as alleged.

On an inquiry of damages, the court, against the objection of the defendant, permitted testimony to go to the jury tending to prove the market value of eggs at the place of consignment on the day they ought to have been delivered, and their value at that place on the day they were actually delivered, and that their value was less on the latter than on the former day.

Counsel for plaintiff in error contends that the court erred in admitting this testimony to go to the jury, on the ground that the defendant “ is only bound to make good the loss which is the natural and legitimate result of his' failure to comply with his contract;” and that a loss arising from a depreciation in the market value of eggs at the place of delivery, in consequence of his breach of the contract, is not a natural or legitimate result of such breach.

In support of this proposition, counsel relies very much upon the leading English case of Hadley v. Baxendale, 9 Exch. 341.

The rule laid down in that case for the ascertainment of damages in cases of breach of contract is divided into two alternative heads.

Under the first of these, damages are to be allowed which would arise naturally, or according to the usual course of things from the breach of the contract; and, under the second, those which may fairly be supposed to have been contemplated by the parties as the probable result of such breach.

The case before that court fell under the first of these heads, as will appear from the following language, taken from the opinion : “Now, in the present case, if we are to apply the principles above laid down, we find that the only circumstances here communicated by the plaintiffs to the defendants, at the time the contract was made, were that the article to be carried was the brokeu shaft of a mill, and that the plaintiffs were the millers of that mill. Rut how do these circumstances show reasonably that the profits of the mill must be stopped by an unreasonable delay in the delivery of the broken shaft by the carrier to the third person ? ”

And the court was of the opinion that, under those circumstances, the profits of the mill, which were lost in consequence of the breach of the contract to deliver the broken-shaft, which was to be used as a pattern for a new one, -within a reasonable time, did not constitute such damages .as would arise naturally, or according to the usual course ■of things, from the breach of. the contract.

But we do.not think that the facts and circumstances of the case before us bring it under the first; but, on the contrary, for reasons that will be stated below, we think it ■clearly falls under the second of the alternative heads in Hadley v. Baxendale, and that the plaintiffs were entitled to recover such damages as may reasonably be supposed to have heen in the contemplation of the parties at the time they made the contract, as the probable result of the breach of it.

The proposition, as thus stated, is fully sustained by an .abundance of authority. Ward v. New York Central R. R. Co., 47 N. Y. 29; Scott v. Boston and New Orleans Steamship Co. 106 Mass. 468 ; Sedgwick on the Measure of Damages (6 ed.), 79 ; Ib., note, 81; Field on Damages, sec. 375 ; Griffin v. Colvin, 16 N. Y. 489; Cutting v. Grand Trunk R. W. Co., 13 Allen, 381.

In view of the doctrine as settled by these authorities,it may be safely said that if a common carrier is chargeable with knowledge that the article carried is intended for the market, and unreasonably delays its delivery, and there is a depreciation in the market value of the article at the place of consignment, between the time it ought to have been delivered and the time it was in fact delivered, such depreciation will, in the absence of any special contract, ■constitute the measure of damages.

Was the carrier chargeable with such notice in this case ? W e think he was.

The anxiety of the plaintiffs to obtain quick time on their shipments of eggs, which was communicated to the ■defendants’ agent, shows that, for some reason, they regarded “ time ” as an important element in the shipments. 'The agent, for some reason, appreciated the necessity for ■quick time in the contemplated shipments; .named a time within which he could carry the eggs over .his part of the ■route, and requested to be kept advised by telegraph, so that he might give the eggs his special attention when they reached the point at which he was to receive them. Why this preconcerted arrangement ? With the knowledge of business, which their avocations must have put them in possession of, both parties knew that when large quantities of eggs were being shipped to a great city, they were-usually, if not always, intended for the market at such city. And the reason why both parties recognized the necessity of quick time in the transportation of the article, ■ was that they undoubtedly knew that in this country the market value of eggs was liable to decline at the season of the year in which the shipment was made in this case, and the damages consequent upon such a decline must have been in the contemplation of both parties at the time the-contract was made.

Motion overruled.  