
    Detmer Wallen Co., Plaintiff, v. Delaware, Lackawanna & Western R. R. Co., Defendant.
    (Supreme Court, New York Trial Term,
    February, 1915.)
    Carriers —■ admission' of failure .to carry goods by route prescribed by contract of shipment — measure of damages for breach of contract — evidence.
    There is nothing in the Interstate Commerce Act, as amended, to indicate that the courts have been deprived of power to act with respect, to complaints that may arise out of the failure of carriers to perform contracts of transportation promptly and safely, and to properly perform their duties as common carriers. All questions arising under said act are to be controlled by the reasoning laid down by the decisions of the United States Courts.
    Where a carrier not only admits its failure to carry goods by the route prescribed by the contract of shipment but also admits that there was a delay of, twenty-eight days before the goods arrived at the point of destination, the measure of damages for breach of such contract is the difference between the value of the goods when delivered and when they should have been delivered.
    Where the only difference in value of the goods between said dates was their rental value the shipper is not entitled to recover for loss of prospective profits unless by the terms of the contract of shipment, or by direct notice, they are within the expectation of the parties, so that it plainly appears that they were within the contemplation of the parties when the contract of shipment was made.
    Evidence in an action against a common carrier to recover damages for breach of contract of shipment, considered, and held to bring the ease within the rule that when damage is certain but the amount is uncertain a recovery may be had including loss of prospective profits although' the amount of said loss is uncertain.
    Action against a common carrier to recover damages.
    Eli J. Blair, for plaintiff.
    F. W. Thomson and W. S. Jenney, for defendant.
   Donnelly, J.

This action was brought by the plaintiff, a shipper of freight, against the defendant, a common carrier, to recover damages alleged to have been sustained because of a breach of contract. The alleged breach of contract was as follows: First, failure of the defendant to carry by the route prescribed by.the contract, and, second, the failure of defendant to carry and offer delivery to consignee within a reasonable time. The parties duly waived the right of trial by jury, and the action was tried before the court without a jury. Upon the trial the defendant admitted that it failed to carry by the route prescribed by the contract, and also admitted that there was a delay of twenty-eight days in the average scheduled time before the goods shipped arrived at the point of destination. As the defendant produced no evidence to show a legal excuse for said delay, the court must find, and does find, as a matter of fact, that there was a breach of contract upon its part, as alleged by the plaintiff. The sole remaining question for the court to determine is the proper assessment of whatever lawful damages were proved by proper evidence to have been suffered by the plaintiff by reason of said breach of contract. The defendant contends that whatever damages are assessed in this case must be assessed in accordance with a measure which will harmonize with every provision of the Interstate Commerce Act, with the intent and spirit of the act, as construed by the federal courts, and that, therefore, the damages must be nominal, because to hold otherwise would tend to nullify the provisions of section 10 of that act, in that it would permit the carrier, under the color of a payment for loss occasioned by a breach of contract or by its negligence, to make rebates to favored shippers. I do not believe that this position .is well taken, as there is nothing in the act to indicate that the courts have been deprived of the power to act with respect to complaints that may arise out of the failure of carriers to carry out their contracts of transportation promptly and safely, and properly to perform their duties a,s common carriers. While it is true that since the passage of that act in its amended form Congress has taken over the subject of interstate shipment of merchandise and baggage, and its enactment supersedes state legislation so far as it goes; and while it is also true that there is a conflict of decisions, all questions arising under the provisions of said act are to be controlled by the reasoning laid down by the decisions of the United States Courts. Adams Express Co. v. Croninger, 226 U. S. 491; Michigan C. R. R. Co. v. Vreeland, 227 id. 59; Barstow v. New York, N. H. & H. R. R. R. Co., 158 App. Div. 665. I know of no conflict of decisions between the courts of this state and the courts of the United States on the question of the measure of damages where there is a breach such as disclosed by the facts of this case, that is, the difference between the value of the property shipped when delivered and when they should have been delivered. Sherman v. Hudson R. R. R. Co., 64 N. Y. 264; Katz v. Cleveland, C., C. & I. L. R. R. Co., 46 Misc. Rep. 259; 13 Fed. Repr. 330; 17 id. 482; 21 id. 885; 69 id. 685. The question then is, what is that difference? So far as the difference in the intrinsic value of the property is concerned, there was no difference between the dates in question, except a loss of value of its use, viz., its rental value. Therefore, unless the plaintiff is entitled to recover for loss of prospective profits, its recovery would be nominal. Such damages may not be recovered unless by the terms of the contract, or by direct notice, they are within the expectation of the parties, so that it plainly appears that they were within the contemplation of the parties when the contract of shipment was made. Central Trust Co. v. Savannah & W. R. Co., 69 Fed. Repr. 680; Foster v. Cleveland, etc., R. R. Co., 56 id. 434; Hamilton v. McPherson, 28 N. Y. 72; Katz v. Cleveland, C., C. & I. L. R. R. Co., supra, and cases there cited, and Rosenberg v. Delaware, L. & W. R. R. Co., 88 Misc. Rep. 1. It appears from the evidence that the plaintiff was engaged in the sale of manufactured woolens and tailors’ trimmings to merchant tailors. These woolens were purchased from the plaintiff from samples. The woolen samples are mounted on cards, varying in size from three and one-quarter by five and one-quarter to six by nine inches. For the purposes of sale various materials and sizes are identified by numbers and descriptive matter printed on the cardboard to which samples are attached. These samples are prepared twice a year, once for the spring and summer season, which begins about January first and continues for six months, and again for the fall and winter season, which begins in'June and ends in December. It also appears that plaintiff maintains various selling stores throughout the country; that samples at the beginning of each season are forwarded to these selling stores for distribution among the trade; that plaintiff conducts and did conduct such a store in December, 1909, in Los Angeles, Cal.; that at the beginning of each season there is, naturally, the usual competition for business; that the dealer whose samples arrive first is the competitor best in a position to offer goods for sale; that shortly prior to the beginning of each season, and some time before the year 1909, a representative of the defendant railroad called upon the plaintiff, soliciting its order to convey its samples to their destination, including Los Angeles; that the practice had continued for a long period of years; that defendants had been repeatedly told the nature of the plaintiff’s business and the urgent necessity for haste in having goods arrive at the opening of each season; that by reason of the long period of time during which the parties did business together the defendant was thoroughly familiar with these facts. It likewise appears from the evidence that on December 23, 1909, the samó representative of the defendant called upon the plaintiff soliciting its order to convey its samples for the ensuing year to the Los Angeles branch, which order was given; that the bill of lading described the goods as twenty-three cases of dry-goods, sample cards, weighing 9,980 pounds ; that the freight on this shipment, amounting to $229.40, was prepaid, and the route over which the goods were to travel to their destination was designated by the plaintiff and incorporated in the bill of lading. It is admitted by the defendant that the goods were misrouted and did not arrive at their destination until February 8, 1910, which was twenty-eight days later than they should have arrived, if they had followed the route designated by the plaintiff. There is correspondence to the effect that the defendant had knowledge of the special reasons for the haste in the delivery of goods. It is evident, therefore, that the purposes for which these samples were to be used were contemplated by the parties to the contract, and that the defendant had knowledge of the necessity of delivering them by the route indicated in its contract so that they would arrive in time for the opening of the winter season. They did not arrive in time for the opening of said season, and the plaintiff sustained damages. It is true that the amount of the damages is uncertain, but I believe that this case comes within the rule that where damage is certain but the amount is uncertain, a recovery may be had, including loss of prospective profits, although the amount of said loss is uncertain (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205; Delafield v. J. K. Armsby Co., 62 App. Div. 262; Dickinson v. Hart, 142 N. Y. 183), and therefore that the plaintiff should not be limited to the recovery of nominal damages because of their uncertainty in amount. The testimony discloses that the sales of the plaintiff at the Los Angeles store in the year preceding the delay from January- first to February ninth amounted to $4,375.21; that the sales during the same period in the year of delay were $1,756.02 and that the sales during the same period for the following year were $4,431.30. There is also testimony to the effect that the plaintiff’s profit.on sales is thirty-three and one-third per cent. By adding the sales of the year before and the year after the. delay in delivery, we find that the total is $8,806.51, and that half of that would be the average sales for those two years. It is fair to assume from the .evidence that, the conditions, being .the same had the samples been delivered on time, the sales, for the month covered by the delay would have averaged at least $4,403.25. As a matter of fact they amounted to $1,756.02, making a difference in average sales of $2,647.23. A third of this would amount to $882, which sum approximates the amount of profit which would have been realized had'the goods been delivered- on time. I accordingly find that the plaintiff has been damaged by reason of said breach of contract in the sum of $882 and direct judgment in its-favor for said sum.

Judgment for plaintiff.  