
    John Kyle vs. The Laurens Railroad Company. Teague & Martin vs. The Same. T. A. & J. Hudgens vs. The Same.
    The Laurens Railroad Company gave receipts for cotton “ to he delivered on presentation of this receipt at Charleston.” The cotton reached the terminus of the Laurens Railroad in safety, and, there, without bulk being broken, was delivered in the same ears to the Green-ville and Columbia Railroad to be carried on. It was afterwards lost:— Held, that the Laurens’ Railroad Company were liable — their undertaking beiDg special, to carry to Charleston.
    Where cotton is lost by a common carrier, interest upon its value may be assessed by the jury as part of the damages, in an action against the carrier for the loss.
    In estimating the damages in an action against a carrier for the loss of cotton which he undertook to deliver to plaintiffs’ factors in Charleston, the amount of factor’s commissions upon the value should not be allowed the defendant, in abatement.
    BEFORE O’NEALL, J„ AT LAURENS, SPRING TERM, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ In these cases, tbe undertaking of tbe defendant was, that tbe cotton shipped was 1 to be delivered on presentation of this receipt at Cbarleston.’
    
    
      “ Portions of tbe shipment, in each case, was not delivered at Charleston.
    “ An admission was read that Scott and Knox, two witnesses for the defendant, would prove, that the cotton was delivered to the Greenville and Columbia Eailroad Company, at the Newberry Depot, by its arrival there; the transfer of the freight list by the agent of the Laurens Eailroad to the agent of the Greenville and Columbia Eailroad Company, copied in their books; that when the Greenville and Columbia Eailroad Company gives a receipt for cotton destined for Charleston, its place of destination is mentioned in the receipt, as information or direction to the other Company, where to carry the cotton.
    . “ Mr. Eppes, the agent of the Laurens Eailroad at its head, and who signed the receipts, said, that the freights of the Laurens Eailroad, Greenville and Columbia Eailroad, and the South Carolina Eailroad were collected in Charleston on the delivery of the cotton ¿here; each Company, of course, had its respective freight.
    “The cars from Laurens did not break bulk at Newberry —the shipping was transferred to the Greenville and Columbia Eailroad — the cars went on over the Greenville and Columbia Eailroad, and the South Carolina Eailroad to Charleston.
    “ I was of the opinion, and so stated to the jury, that the defendant was not discharged by the delivery of the cotton in the manner proved, to the Greenville and Columbia Eail-road. That its (the Laurens Eailroad) undertaking was to deliver to the factors at Charleston, on the presentation of the respective receipts, and that the consideration of freight on the Laurens Eailroad was enough to prevent the contract from being considered nudum pactum.
    
    “ I directed the jury, in each case, to deduct the entire freight of the Laurens Eailroad, the Greenville and Columbia Bailroad, and tbe South Carolina Bailroad, two dollars and twenty-five cents,.per bale, from the aggregate of the value of the cotton in Charleston, which was done. The commissions on sales of the cotton not delivered, and which, therefore, was never sold, I thought could not be allowed.
    “Interest, eo nomine, was not allowed; but the jury were told, as cotton was a cash article at the place of delivery— ’ Charleston — they might compute, and add it to the value of the cotton, from the time notice of the loss was given to, and demand of payment was made from, the defendant, who stood in the respect of such a loss as an insurer to the plaintiffs. This was also done by the jury.”
    The defendants appealed, and now moved for a new trial on the grounds:
    1. Because the cotton sued for in these cases was delivered by the defendants to the Greenville and Columbia Bailroad Company at Newberry, the terminus of the defendants’ Boad; and their responsibility, for the transportation of the said cotton, then and there ended.
    2. Because by the usage of trade, the plaintiffs well knew that the defendants only undertook to carry their cotton to the terminus of defendants’ Boad; and that was the plain meaning and effect of the receipts they gave for the cotton in question.
    3. Because if theré was any contract on the part of the defendants to carry the cotton further than Newberry, it was without consideration, and void.
    4. Because the Court erred in overruling the aforesaid grounds of objection to the plaintiffs’ recovery, and in further holding that the plaintiffs were entitled to recover interest, and that the expense of commissions in Charleston should not be deducted from the Charleston prices of the cotton.
    Sullivan, for appellants.
    
      Simpson, contra.
    
      
      
         The receipts were all alike. The following is a copy of one of them.
      
        Laurens Railroad, April 18í7¿, 1855.
      Received of John Kyle, nine (9) bales of cotton, marked as per margin, and shipped this day, to Messrs. E. H. Rogers & Co., to be delivered on presentation of this receipt at Charleston — all in bad order.
      John W. Epkes, Agent L. R. R.
      Marks. — (Pruth) 4 in Dundee bagging.
    
   The opinion of the Court was delivered by

O’Neall, J.

The three first grounds really make the same question, was the defendant liable for the cotton lost, after it reached the Greenville and Columbia Bailroad, and before it reached its destination, Charleston ? That the Laurens Bail-road Company was liable, is, I think, plain from the receipts, whereby it plainly undertook for the delivery of the cotton in Charleston. The cases were in this respect, like the case of Lipford vs. The Charlotte and South Carolina Railroad Company, 1 Rich. 409. In that case the Company undertook for the delivery of the cotton in Charleston; and was only saved from liability for a loss, arising from the delay in reaching Charleston, by showing, that the South Carolina Bailroad was broken up by a freshet, the act of God.

The case of Muschamp vs. The Lancaster & Preston Junction Railway Company, 2 Railway Cases, 607, states, I think, the true rule. There a box was delivered to the Company, directed to a place beyond the terminus of the Company’s railway; and it was held, by Bolfe, Baron, to be liable for a loss, although the box reached Preston, the terminus, and there another took it up to transport it to its destination.

The rule was laid down in that case, by Bolfe, that where a carrier takes a parcel directed to a particular place, and does not by particular agreement limit his responsibility to a part, it is primd facie evidence of an undertaking to carry to the place, though beyond the limits of his trade, as a carrier; and therefore, that he is liable for a loss occurring even beyond his limit. This ruling was approved on appeal by Lord Abinger, C. B., Gurney and Bolfe, B’s.

Tbe same principle is recognised by tbe cases cited by tbe defendant, in tbe brief. Indeed, tbe Supreme Court of New York, by Nelson, C. J., in tbe case of St. John and Tousey vs. Van Santvoord and others, 25 Wend. 660, beld, that tbe carrier was liable for a box directed to J. Petrie, Little Falls, Her-kimer, and wbicb tbe defendants received to be transported, on their tow boats on tbe Hudson, wbicb only ran to Albany, and tbe box reached Albany safely, but was lost beyond. Tbe Chief Justice said, perhaps a usage of trade might limit their responsibility. Tbe case was carried to tbe Court of Errors, and it was there beld that it was shown, that tbe usage of trade was to deliver at Albany to tbe Canal line to transport to tbe place of destination, and this limited tbe liability of tbe defendants to their terminus.

Tbe same ruling is repeated, in the Farmers' and Mechanics' Bank vs. The Champlain Transportation Company, 18 Vermont, 140. It would be enough to 'say, concede all wbicb those cases ruled, and' still tbe defendant cannot be helped, for no usage of trade was proved, that tbe Laurens Railroad Company should deliver to tbe Gr. & C. R. R. Co., at New-berry. It was true, tbe freight list was there turned over, but tbe cotton went on in tbe Laurens Railroad cars without bulk being broken. This looked more like tbe G. & C. R. R. Co., stood in tbe character of employee to tbe Laurens Railroad Company, than as liable to tbe consignor. But in all tbe cases decided in New York, Vermont, and Connecticut, there was a mere direction of tbe parcel to a point beyond tbe carrier’s trade. Here tbe carrier especially undertakes, on tbe presentation of tbe receipts given for tbe cotton, that it should be delivered in Charleston. This it seems to me ends all pre-tence, wbicb might arise under an implied undertaking from a mere direction. As to tbe notion of nudum pactum, tbe report ‘sufficiently answers it.

Two questions arise out of tbe fourth ground, — 1st was tbe Company liable for interest on tbe nett value of tbe cotton ? 2nd was tbe Company entitled to deduct commissions on tbe value of tbe cotton as if sold ?

Interest .was, I tbink, properly allowed. Tbe cotton lost was a casb article, at tbe place of delivery; its value was estimated on a casb sale, so that tbe plaintiffs’ loss was respectively, as of so much casb. Hence, interest must be charged against tbe carrier by wbom tbe loss was occasioned. I regard a carrier, in tbe light of an insurer against • every thing,, except tbe act of God and tbe enemies of tbe country. In 2 Phillips on Ins. 750-1, we are told tbe practice is to allow interest against tbe insurers on tbe loss from tbe time of abandonment: or perhaps more properly speaking from notice of the abandonment, and demand of payment, or after tbe expiration limited by tbe policy for payment to be made. Tbe interest here was computed from tbe time of demand of payment.

Tbe answer to tbe second question cannot, I tbink, be well doubted after it is properly considered. Tbe carrier in ordinary cases has no right to commissions. If, as in tbe case of Bridge vs. Austin, 4 Mass. Rep., 115, be undertook to transport and sell, and for so doing, then, be was to have five per cent, commissions, it may well be in tbe case of a loss, be would have tbe right to deduct tbe commissions. Por they were a part of bis compensation for bis service touching tbe article lost. But in these cases, tbe carrier bad nothing to do, but to deliver in Charleston. If a factor might there have sold, it was a matter in which tbe Laurens Railroad Company bad no interest whatever.

To illustrate tbe matter still further, suppose tbe cotton bad reached tbe Charleston depot, and tbe carrier bad refused to deliver, and trover bad been bought, what would have been tbe plaintiffs’ damages ? Tbe value of tbe article, deducting tbe freight, and adding interest on tbe nett value. In such a case, commissions could not have been talked about. How in any case can any deduction be made for that, which was to be subsequent to tbe carrier’s discharge of liability, by delivering tbe parcel? Tbe authorities are, I think, clear against such allowance. Sedgewick on Damages, chap. 18, p. 369, tells us, that the rule whereby the damages are fixed, is a rule of law. At 370-1, he tells us, the rule, as to carriers is, the value of the article lost, or not delivered at the place of destination deducting his freight. The same is substantially the ruling in Gillingham vs. Dempsey, 12 Sergeant and Eawle, 183.

The motions are dismissed.

WhitNER, Glover, and MuNro, JJ., concurred.

Motions dismissed.  