
    HENRY B. KIRKLAND and Others, Plaintiffs and Respondents, v. ARTHUR LEARY, Defendant and Appellant.
    
      [Decided December 31, 1871.]
    In an action for the breach of a contract to carry, from Charleston to New York, ninety-one bales of cotton on board a designated ship, of which only a portion came by such ship, and the remainder was delayed for several days—held, that the measure of damages for not delivering the whole is not the difference in the market price of cotton on the day when it ought to have arrived, and the day when it did arrive, but only any depreciation or injury to the commodity itself.
    Before Monell, Jones, and Spencer, JJ.
    Appeal from a judgment and an order denying a motion for a new trial. The case was tried before Judge McCunn and a jury.
    The action was against the defendant as owner of the steamship Granada, to recover for loss on part of a shipment of cotton from Charleston, S. C., to this city.
    On the 14th of September, 1867, the plaintiffs shipped ninety-one bales of cotton, as per the following bill of lading:
    Shipped in good order and condition, by E. N. Puller, R. & F., agent, S. C. R. R., onboard the steamship called the Granada, whereof is
    master, now lying in the port of Charleston, S. C., and bound for New York, to say, ninety-one bales of cotton, twenty-seven sacks of flour, being marked and numbered as in the margin, and are to be delivered in the like good order and condition at the port of New York (the dangers of the seas and fire only excepted), unto Kirkland, Wyly & Co., or to their assigns, he or they paying freight for said cotton and flour, and expenses, 91 B. 0. 27 S. F. — Bales. K. W. & Co. A. G. W. 27 S. F. 191 §657 01 5 55 88 46 . §696 02 $690.47 and $5.55, repairing 37 bales without primage and average accustomed.”
    In witness whereof the master or purser of the said vessel hath affirmed to four bills of lading, all of this tenor and date, one of which being accomplished, the . others to stand void.
    Dated, Charleston, S. C., the
    14th day of September, 1869.
    Ravehel & Co., Agents,
    Per E. P. Millie™.
    On the 19th September the ship arrived at this port, and the plaintiffs notified thereof.
    A bill for freight, as follows:
    Messrs Kirkland, Wyly & Co.,
    Dr. to Steamship Granada,
    Arthur Leary.
    Freight and charges as per bill lading from Charleston.
    Marks and numbers.
    J. B. F. S. 48 bags wheat, freight.................. $12 00
    K. W. & Co. 91 bales IT. Cotton..................... 68 25
    W. 4 sacks flour......................... 6 75
    Received payment charges....................... 621 02
    $708 02
    Arthur Leahy,
    pr. Bahclay.
    —was presented to and paid by the plaintiffs.
    Only forty-two bales came by the Granada. The remaining bales (forty-nine) came by the Alabama and reached this city on the 25th of September.
    The difference in the market prices of cotton in this city between the 19th and 25th September was about three cents a pound, being so much less on the arrival of the last bales.
    The evidence of the market value of the cotton was objected to, as not being the correct measure of damage. The objection was overruled.
    
      There was a motion for a nonsuit, on the ground that the defendant was not the owner of the steamship, and that no negligence had been shown. The motion was denied.
    The judge directed a verdict for the plaintiffs for the difference between the market price of the cotton.
    A motion was made for a new trial upon the judge’s minutes and denied.
    The defendant appealed from the judgment entered upon the verdict and from the order.
    
      Mr. Charles C. Egan for appellant.
    There was no proof of an agreement to deliver within a limited time, and the cotton having been actually delivered, and the complaint being for late delivery only, the question was simply one of reasonable diligence, which had been fully shown (Wibert v. N. Y. & E. R. R. Co., 12 N. Y., 251; Blackstock v. Same, 20 id., 48; Parsons v. Hardy, 14 Wend., 215).
    It has been repeatedly held that a carrier is not under the same absolute obligation to carry the goods in the usual time, as he is to deliver them ultimately at their destination (Blackstock v. N. Y. & E. R. R. Co., 20 N. Y., 50; citing Conger v. Hudson R. R. R. Co., 6 Duer, 375, and Wibert’s case, 12 N. Y., 245).
    The undertaking and duty of a common carrier are to carry and deliver safely within a reasonable time. The first duty is absolute, the second merely relati/oe. What is a reasonable time depends in each case upon its particular circumstances (Conger v. Hudson R. R. R. Co., 6 Duer, 375-378). There were questions of fact which it was proper for the jury to consider:
    The question of reasonable diligence in the delivery of the cotton, and
    Whether there was unreasonable delay in the delivery of the cotton.
    Even admitting the correctness of the principle that the plaintiffs were entitled to recover the difference in the market price of cotton as damages, the question of what that difference was should, upon the conflicting testimony of Kirkland, one of the plaintiffs, and of Coleman, a disinterested witness, have been submitted to the jury.
    Under the ruling of the court that the difference in the market price was the rule of damages, if the question had been submitted to the jury, and they should have found the difference to be as testified to by Coleman, it would have made a difference of $438.74 in the recovery.
    To admit a positive instruction to find for a particular party, is allowable only when the evidence leaves no reasonable doubt of the facts in issue (St. John v. The Mayor of N. Y., 6 Duer, 315).
    Where there is a conflict of evidence upon a question of fact, the question should be submitted to the jury, and if this is not done the judgment should be reversed and a new trial ordered (Butler v. Murray, 30 N. Y., 102).
    To warrant an unqualified direction to the jury in favor of one party or the other, the evidence must he undisputed, or the preponderance so decided that a verdict against it would be set aside and a new trial granted (Rich v. Rich, 16 Wend., 663; Crawford v. Wilson, 4 Barb., 573, and cases cited. See, also, 2 Bosw., 374; 5 Seld.,205; 12 Barb., 108; 32 Barb., 282; 9 Barb., 611; 23 How., 233; 3 Wend., 102; 5 Wend., 261).
    
      Mr. Luther R. Marsh for respondents.
    In an action against a common carrier for not conveying goods delivered to him for transportation, either within a specified or a reasonable time, the measure of damages—the goods being uninjured in quality but depreciated in value through the delay ■—-is the difference between the market value of the goods at the place of destination at the time when they should have been delivered, and the market value at the same place at the time when they actually were delivered.
    Whatever confusion may exist on this subject is due to the contrary decisions of the Supreme Court on the question (Wibert v. N. Y. & Erie R. R., 19 Barb., 36, and Jones v. N. Y. & Erie R. R., 29 Barb., 633), to some extent holding the contrary of the above proposition; while the case of Kent v. Hudson River R. R. (22 Barb., 278) sustains the same to its full measure.
    At most, therefore, the question would be an open one in this court, to be decided on principle; but, in addition, it can be shown that the case of Kent v. Hudson Biver E. E. is most in accordance with principle and authority, and that the case at bar has elements which distinguish it from both of the first above cases, and which, those very cases hold, would render the rule as above stated entirely applicable.
    It is settled by authority that a carrier, for an entire faibwre to deliver, is liable for the value of the goods at the place of destination at the time when they should have been delivered (Watkinson v. Laughton, 8 Johns., 164; Amory v. McGregor, 15 Johns., 24; Van Winkle v. U. S. Mail S. Co., 37 Barb., 122; Marshall v. N. Y. Central R. R., 45 Barb., 502). Hence, in such a ease, the carrier is liable for any depreciation in the value of the goods at the place of destination.
    There is no difference in principle between the two cases. The analogy is clear, and there can be no reason why the increased value allowed as an element of damage in the one case should not be allowed in the other. It is as much an element of loss in the one case as in the other, and the possible fluctuations of the market are as good an objection in the one case as in the other.
    The proposition, as we have stated it, is the most supported by authority.
    The case of Wibert v. the N. Y. and Erie R. R. was expressly and in terms overruled by the case of Kent v. Hudson River R. R.; and although the latter case is claimed to be overruled by that of Jones v. N. Y. & Erie R. R., still the opinion in the last case was delivered by the same judge (Marvin) who delivered the opinion in the Wibert case, and may be considered but as a reiteration of his views.
    
      “When a carrier has received property for transportation, if he is liable for any loss or injury resulting from delay in its transportation, or otherwise, while in his possession, such damages are to be appraised or fixed at the place of destination of such property. * Thg question, then, is, assuming that the damages should have been assessed at the value or depreciation of the apples at Albany, whether proof of such value or depreciation in the New York market was inadmissible, and error, etc.” (Marshall v. N. Y. Central R. R., 45 Barb., 502-508).
    Even under the rule sought to be established by the cases of Wibert v. N. Y. & Erie R. R., and Jones v. N. Y. & Erie R. R., the defendant in this case is liable for the depreciation in the value of' the cotton.
   By the Court:

Monell, J.

There was sufficient evidence to establish the defendant’s liability. A bill for the freight of the cotton was made out in his name and paid at his office. This prima facie proof of ownership was not shaken by the evidence furnished by the defendant that he was the agent of this line. He could be agent and owner or part owner at the same time.

As the paper excluded by the court is not printed in the case, or otherwise furnished to us, we cannot say whether it was or was not properly rejected.

The action was for the breach of a contract to carry from Charleston to New York ninety-one bales of cotton on board the steamship Granada. Only forty-two bales came by that ship, the remainder being delayed five or six days.

It was the usual contract of a common carrier, rendering them liable for all damage sustained by reason of the delay.

The rule of damages adopted at the trial was the difference between the market value of cotton on the day when the whole number of bales ought to have arrived, and the price on the day when the remainder did arrive.

This is probably not a sufficiently open question to allow us to depart from the decisions which have already been made on the ‘subject.

The case of Conger v. The Hudson R. R. R. Co., in this court (6 Duer, 375), was an action against the defendants, as carriers, to recover damages for delay in the transportation of cattle. The plaintiff claimed for shrinkage and also for loss of the marTcet, and the jury was allowed to ascertain such damage. The court, upon exceptions, set aside the verdict, on the ground that the delay being without the defendants’ fault, they were not liable. Such decision rendered it unnecessary to consider the rule of damages adopted at the trial. Nevertheless, the court, approving of the case of Wibert v. N. Y. and Erie R. R. Co. (19 Barb., 36), gave an emphatic opinion that no recovery could be had of damages for loss of market, from whatever cause the delay might arise.

After the decision in this court, the Supreme Court in the seventh district, in Kent v. Hudson R. R. R. Co. (22 Barb., 278), in effect overruled Wibert v. N. Y. and E. R. R. Co. But the latter case was subsequently fully sustained in Jones v. N. Y. & E. R. R. Co. (29 Barb., 633).

The question is not settled by any authority binding on us, but we think that the clearly annunciated opinion in Conger v. Hudson R. R. R. Co. (supra) should induce us to follow the latest decision of the Supreme Court and set this verdict aside.

The judgment and order should be reversed, and a new trial ordered.

Jones, J.

(concurring). Whatever may be the rule of damages when the contract is to carry and deliver at a specified time, that rule does not apply here. The contract to carry by the ship Granada is not equivalent to one to carry and deliver at a specified time.  