
    Julius P. Baumann et al, Plaintiffs, v. The New York, New Haven & Hartford R. R. Co., Defendant.
    (Supreme Court, Kings Trial Term,
    June, 1901.)
    Common carrier — Failure to deliver — Measure of damages.
    Where a common carrier fails to deliver summer goods within a reasonable time it is liable for the breach, and the consignees may recover the full value of the goods where they refuse to call for them when notified by the carrier to do so, the season for sale being over, and the carrier subsequently permits the goods to become worthless from an apparently negligent exposure to moisture.
    Action against a common carrier for nondelivery of goods.
    A. H. Geismar, for plaintiffs.
    Strong & Caldwalader (John E. Charlton and George Coggill, of counsel), for defendant.
   Russell, J.

For nondelivery of. summer goods in seasonable time the defendant, as a common carrier between Boston and Hew York, is sued for the resulting damages. They were delivered at Boston July 10, 1899, to be transported to plaintiffs at Hew York. July twelfth plaintiffs’ truckman called for the goods at defendant’s Hew York wharf, but did not get them. July fourteenth plaintiffs’ manager, Schey, called at the wharf for the property and was told it was not there and" could not be found. Before August first he went three other times with a similar result. Calling again August second and asking for the general manager of the freight department, he interviewed some one whose authority does not appear, but who directed a search for the goods, which was ineffective, and told Schey to send in his claim “ and we will pay the check.” The claim was sent in A-Ugust fifth, but never recognized as valid. August eighth defendant notified plaintiffs that the goods were found, and they should call for them. Plaintiffs replied, “ We don’t want the goods now. The season is over.” August sixteenth defendant, notified plaintiffs again to take the goods. In June, 1900, under an attempt of the parties to adjust their differences, Schey examined the goods at defendant’s warehouse and found them wet and mouldy.

In deciding as to the right of recovery it is unnecessary to review the range of the law of negligence or the presumptions showing when conversion of personal property may'he adopted to reach the ends of justice. Here it is only essential to follow the lines of contract obligation. A common carrier agrees to transport goods delivered to it within a reasonable time and does not perform. The contract .broken, what are the damages?

Ordinarily the shipper may recover the difference in value at the time he receives the goods and when they should have been obtained, with such loss as the delay occasioned. Scovill v. Griffith, 12 N. Y. 509; Zinn v. New Jersey Steamboat Co., 49 id. 442.

That rule obtains here. There are no special circumstances to divert the liability from contract to tortious obligation. The only question to be solved is as to what period of time shall be adopted to evidence the depreciation in value. Shall it be in August, 1899, when plaintiffs could have obtained their goods, or in June, 1900, when they were found to be spoiled? There can be but one recovery for. this breach and damages may be recovered to the day of trial. Wilcox v. Executors, 4 Pet. 172; Behrman v. Linde, 23 N. Y. St. Rep. 491.

The condition of the property at the later date indicates exposure to recent moisture. H, therefore, the plaintiffs were exempted from the duty of taking their goods, or the defendant had presumptively neglected its contract duty to use reasonable care to preserve them, liability arises for their full value. It is not a case of loss by fire without fault or of gradual deterioration by the wasting power of time, but of unexplained destruction by apparently negligent exposure. Hence, even if plaintiffs should have taken the goods by again sending a truck for them after they were found, the defendant is not exonerated from responsibility in allowing their utter loss.

It may also be doubted if the- letter of August eighth, saying that plaintiffs did not want the goods, as it was too late, was a complete waiver of defendant’s obligation to deliver the goods in August, 1899, when they were found. The plaintiffs had been to unusual trouble and expense to send to the wharf for them, .and when the defendant found it could deliver it was time to restore the goods without further expense to plaintiffs. In fact •some of the burden of the previous efforts of plaintiffs might be justly charged to defendant. A trial of the issue had before August 8, 1899, would have resulted in a recovery for the full-value. On August second some one at defendant’s office had recognized its liability to pay for the goods, and the promise to pay therefor, though not forceful as an obligation for want of proof of authority to make it, was made in defendant’s name by some one in apparent power to search for and deliver the goods, and this might well excuse plaintiffs from again sending for the .goods instead of the pay for them.

Let judgment go for the full value as proven.

Judgment accordingly.  