Euston & Co. v. Erie Railroad

147 Ill. App. 594, 1909 Ill. App. LEXIS 137

• Court: Appellate Court of Illinois
• Decided: March 26, 1909
• Docket: Gen. No. 14,416
• Status: Published

Opinion

Me. Presiding Justice Smith

delivered the opinion of the court.

( Plaintiff in error contends that the bill of lading issued by it to defendant in error was in effect a contract of carriage from Chicago to New York, and a contract of the Bristol City Steamship Line to carry from the port of New York to Bristol, England, in other words, that it was two separate contracts. With this contention we cannot agree. The bill of lading cannot be so construed. It is a through bill of lading from Chicago to Bristol, England. The plaintiff in error accepted the consignment for transportation beyond its terminal point, New York City, and became responsible for the transportation of the goods to Bristol, England. Wabash R. R. Co. v. Thomas, 222 Ill. 337; C. & N. W. Ry. Co. v. Simon, 160 id. 648; Anchor Line v. Dater, 68 id. 369; Merchants’ Despatch Trans. Co. v. Furthmann, 149 id. 66.

By the stipulation of facts offered in evidence it appears that the oil cakes arrived in New York City on February 12, 1906, and that it “did not leave that point until March 16th following, although it could have left earlier on March 8th if it had not been for advices received from W. E. Eaton, agent, Chicago, purporting to originate from Euston & Co., to hold the shipment pending reconsigning orders from shippers to another point.” It also appeárs by the stipulation that nine days was a reasonable time for the transportation of the shipment from Chicago to New York; and by the testimony of the witness Barnard that a reasonable time from New York to Bristol, England, is from fourteen to eighteen days after the sailing of the steamer. It also appears from the stipulation of facts that the steamship company had weekly sailings from New York to Bristol. From these facts the trial court, to which the cause was submitted without a jury, was warranted in finding that there was unreasonable delay in the transportation of the shipment to its destination.

It is well settled law that for failure of the carrier to deliver merchandise at its destination in a reasonable time, the true measure of damages is the difference between the value of the goods at the time they should have been delivered and the value when they were delivered. S. & M. R. R. Co. v. Henry, 14 Ill. 156; G. & C. U. R. R. v. Rae, 18 id. 488; 3 Sutherland on Damages, p. 215; Scovill v. Griffith, 12 N. Y. 509; Hackett v. Railroad Co., 35 N. H. 390. If the goods were forwarded by the carrier in pursuance of a contract of sale between the consignor and consignee the measure of damages is the difference between the contract price and the value of the goods when actually delivered. Ill Cent. R. R. Co. v. McClellan, 54 Ill. 58; Medbury v. N. Y. etc. R. R., 26 Barb. 564; Deming v. Grand T. etc. R. R., 48 N. H. 455.

It is contended, however, that this rule of damages does not apply to the case at bar because it is not shown that the plaintiff had notice of the contract of sale between defendant in error and the consignee at Bristol. But in Ill. Cent. R. R. Co. v. Cobb Christy & Co., 64 Ill. 128, the court answered.this contention by saying (page 141):

“The rule undoubtedly is, as between vendor and vendee, or shipper and carrier, that where the article is destined for a special purpose, that fact should be communicated to the vendor or carrier if it is to be made the foundation of special damages against them, and if it is of a character likely to affect the action of the vendor or carrier. Hadley v. Baxendale, 26 E. L. & Eq. 402; Griffin v. Colver, 16 N. Y. 490.

“The fact that this corn was intended for the government was undoubtedly known to the managing officers of the company, and we are not of the opinion that this rule, as expounded in these cases, requires that the shipper should communicate to the carrier the terms of a contract of sale in order to recover the contract price as damages, except so far as there may be some feature in the contract likely to affect the carrier’s action.”'

There was no such feature in the contract of sale between defendant in error and the consignee. We think, therefore, the rule of damages above stated, which was applied in this case by the trial court, was the correct rule.

It is urged that the evidence offered does not show that the price at which the goods were sold in Bristol was the market price or value there when the goods arrived. In our opinion the testimony of the consignee, who was a broker at Bristol, tends to show the market value of the oil cake when it arrived at Bristol. This witness, Barnard, had purchased, as the record shows, 4,260 tons of oil cake in 1906, and sold the same quantity. His purchases in January of that year were 250 tons; in February 200 tons; in March 100 tons; and in April 200 tons. He was therefore qualified to testify as to the market value of the cake at the time he sold it and at the time it would have arrived in Bristol if it had been shipped as contracted. It appears from the testimony of the witness that there were no.regular market reports in Bristol, and that he sold the oil cakes at six pounds, twelve shillings, six pence, cost, freight and insurance, which was “the best price obtainable;” and that if the cake had been ‘ ‘ shipped from the sea-board during the month of February, as contracted, it would have realized the price of seven pounds, twelve shillings, six pence, cost, freight and insurance’’. This, we think, makes a prima facie showing of the market price or value of the cake in Bristol, and in the absence of other proof is sufficient, and is proper under the rule. Muller v. Eno, 14 N. Y. 597, 607. In Sutherland on Damages, Vol. 2, page 375, the learned author says: “If the article in question has a market value, that will usually control as the best evidence of its value. If this test has been applied to it by actual sale of it, the fact may be proved as evidence of its value. It is not conclusive, but tends to show its value, and in the absence of other evidence would suffice. Even the amount the goods cost is admissible for the same purpose.”

We think the evidence in the record sustains the . finding and judgment of the court, and there being no material error in the record, the judgment is affirmed.

Affirmed..