
    
      Shaw & Austin vs. South Carolina Rail Road Company.
    
    Where the goods in a common carrier’s possession are uninjured in quality, but there is a partial loss, the owner cannot abandon the goods and recover their entire value: he can recover only the price, at the place of delivery, of the goods actually lost.
    
      Before O’Neall, J. at Kershaw, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows.
    . “ This was an action by way of sum. pro. to recover for a loss sustained in two barrels of molasses, part of a parcel of ten barrels shipped in good order.
    “ When they reached Camden, eight barrels were received; the drayman or wagoner declined to receive two, on account of their leaking condition. He informed the plaintiffs; they refused to receive the two barrels from defendants, and brought this action.
    “ It appeared that the barrels had received no external injury, but they had leaked in carrying, until one of the barrels had lost about ten gallons, and the other two-thirds.
    “The printed freight lists, containing the prices of freight, and the conditions which the Company attach to their liability as carriers, contains an express stipulation that the Company will not be liable for leakage of molasses.
    
      “I thought this meant the ordinary leakage to which the article is always subject, and that the great loss here must be attributed to the improper dunnage of the barrels.
    “ I thought, however, that the Company were only liable for the actual loss sustained by the plaintiffs ; when the Company tendered a delivery of the barrels, I thought the plaintiffs were bound to take the molasses, (which was only deficient in quantity, and not damaged in quality,) and that they could not abandon and charge the Rail Road Company.
    “ The quantity lost was about thirty gallons; this at 28 cents, the cost, made only $8 40, which was below my jurisdiction. A non-suit was ordered.”
    The plaintiffs appealed, and now moved that the non-suit be set aside, on the following grounds.
    1. Because his Honor ruled that plaintiffs were bound to receive the goods in their damaged condition, and could only recover for the loss actually realized at the time of their arrival.
    2. Because, under the decision of his Honor, plaintiffs could not compel the delivery of the goods of plaintiffs now left in the defendants’ possession.
    3. Because defendants were liable, if at all, for the value of the two barrels of molasses, for the non-delivery of which they are sued in this case.
    Kershaw, for the motion,
    cited 1 McC. 362 ; Story on Bailm. § 582.
    
      Shannon, contra,
    cited 4 Strob. 168 ; 2 Rich. 286.
   The opinion of the Court was delivered by

O’Neall, J.

It would be enough for this case to say, that the plaintiffs, having accepted eight out of the ten barrels shipped, could have no pretence to abandon the remaining two. They must abandon all or none.

But there is no such arbitrary rule, which compels a carrier to pay the entire value of an article less in quantity but uninjured in quality.

The owner is entitled to recover his damages. What are they? The price of the thing lost, at the place of delivery. Beyond this, the party cannot claim.

In insurance cases, abandonment can only be made where the thing assured is found to be damaged more than half its value. Sedg. on Dam. 256; Cohen vs. The Fire & Marine Insurance Company, (Dud. 147, 151). Surely, if this be the rule in such cases, a carrier could not be held liable for an abandonment, where the loss did not approach this arbitrary standard. But we have no such rule. The party is entitled to demand from the carrier, that he should be put in as good a condition, as to his goods, as he would have been in, if all had been delivered. This is satisfied by paying for the quantity lost, at the price which it bore at the place of delivery. Brandt vs. Bowlby, (22 Eng. C. L. R. 214). In this case, no demand was made for more than the cost. If it had Leen, I would have allowed the Camden price of molasses to the extent lost.

In Smith vs. Griffith, (3 Hill, N. Y. 333,) which was a case against common carriers, Nelson, C. J. states the rule as I understand it. If goods are wholly lost or destroyed, the owner is entitled to their full worth at the time of such loss or destruction. In trover, the measure of damages is the value of the goods at the time and place of conversion, with interest, or, perhaps, at any time between that and the trial. And upon the same principle if the goods are partially injured, and the party seeks redress for the qualified damages, the measure should be in like proportion.”

The company, in this case before us, offered to deliver the molasses when it arrived, and have been ready to deliver whatever is left (the leakage still continuing) at all times since.

The plaintiffs would not receive the diminished quantity, unless the company would pay the damages resulting from leakage.

It is beyond all doubt, that the plaintiffs could impose no such conditions. They were bound to take the goods, and test the liability of the defendants for the damage which had been sustained. For it is well settled that the acceptance of the goods would in no wise affect that question. Sedg. on Dam. 376.

How the decision affects the plaintiffs’ right of property to the molasses, remaining in the carrier’s possession, is difficult to conceive. I should think it had directly a contrary effect. For in affirming that the plaintiffs could only recover for the portion lost, it is assumed, that they might have received what was left.

The motion is dismissed.

Evans, Wardlaw, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.  