Tabbeei,, J.:
At tbe April term, 1868, of tbe Copiab county circuit court Allenson Tyson brought bis action against tbe Hew Orleans, Jackson & Great 1STortbern Railroad Company, for that, in 1867, tbe said Tyson, at Wesson, shipped upon tbe railroad of defendants, who were common carriers for hire, six thousand barrel boop-poles, of tbe value of $300, and two thousand half-barrel boop-poles, of tbe value ' of $100, to be carried to Hew Orleans, La., and there to be delivered to Smith & McKenna, for a reasonable charge, to be paid by Smith & McKenna, but tbe defendants, disregarding their undertaking in this behalf, and their duty as common carriers, so negligently and carelessly conducted themselves in regard to tbe said boop-poles, that they did not deliver tbe said boop-poles to tbe said Smith & McKenna, but, on tbe contrary, the said boop-poles were wholly lost to tbe plaintiff, to bis damage $500. Tbe defendant pleaded tbe general issue, with notice that they would prove tbe due arrival of tbe boop-poles at their depot in Hew Orleans, of which fact they notified tbe consignees of plaintiff.
Upon tbe trial tbe testimony was conflicting as to tbe value of tbe boop-poles, and as to tbe fact of notice of their arrival to tbe consignees. Tbe jury returned a verdict for tbe plaintiff for tbe full amount claimed, and from tbe judgment thereon tbe defendants below prosecute this writ of error.
Tbe declaration alleges an undertaking, on tbe part of tbe defendants, to deliver tbe boop-poles to Smith & McKenna, and claim damages for a failure so to deliver. We regard this as material. 2 Redf. on Railways, § 157, p. 50. There was no proof upon tbe trial of an undertaking to deliver [736]*736the goods to Smith. & McKenna. Without a special contract they would not be bound so to deliver, unless in accordance with their custom. . Delivery of freight at the end of routes to consignees is mostly confided to express companies, but was formerly, in some instances, undertaken by railroad companies, and is frequently done by other common carriers. There is no dispute in this case that the freight was promptly delivered at the depot of defendants. The testimony on the trial was, as to the usual notice to the consignees of the arrival of the freight, and trial proceeded upon the theory that the plaintiff was entitled to recover the value of the property at the date of its delivery at the depot. Notice to consignees by railroads, of the arrival of freight, depends upon the custom of the company. Redf. on Railways. Such appears to be the custom of the New Orleans, Jackson and Great Northern Railroad Company, and hence it was their duty to give it in this instance. The action, however, is not in form for a failure to give this notice. The rule of damages adopted by the court and jury was as in case of non-delivery of freight; the neglect to give the notice being treated as equivalent to non-delivery of the goods. The goods were shipped in November. The consignor was in New Orleans to look after his property, the last of December or early in January, thereafter. On that occasion, as testified by one of consignees, a clerk of the firm was sent to the depot of defendants to look after the hoop-poles, which, he states, were found in an unmarketable condition, hoop-poles having declined fully one-half in price from the date of shipment to the time of such examination. The witness says, “had they been delivered in time, he could have obtained the full market value, from forty-five to fifty dollars.” Both Smith & McKenna testify, that they never received any notice of the shipment or arrival of hoop-poles from any one, until the arrival in New Orleans of the consignor. The clerk of Smith & McKenna testifies, that they did receive a letter from the consignor, advising them of the intended shipment, and another letter a few weeks after, [737]*737inquiring if the poles had been received. The clerk states, that he went to the depot on the arrival of the consignor, to see the condition of the poles, and found them unmarketable, owing to their long exposure and the fall in the market. This witness further says, “I would not take them in that condition, after having remained there so long without giving us notice, and pay whát I thought the unjust charges made by the road.”
It appears from the testimony of Smith & McKenna that they employed several clerks, as McKenna speaks of George E. Raum, the last witness quoted, as “ one of our clerks.” Only this one was examined as a witness on the trial of this cause. The agent of the defendants, whose duty it was to notify consignees of the arrival of freight at the depot, testifies that he left a notice of the arrival of the hoop-poles with a person writing at a desk in the office of Smith & McKenna, with a verbal request to attend to them and take them away. Upon the theory of non-delivery, the rule of damages followed was correct. "We have been inclined, however, to consider this a case of damages for delay in giving notice to the consignees of the arrival of the freight. Smith & McKenna, the consignees, and their clerk, all testify to their refusal to receive the poles early in January, because of their unmarketable condition and depreciation of their market value, or fall in price from date of arrival to that time, a period of about six weeks, together with want of notice and high charges of freight, but depreciation in value or fall in market price is .pot a sufficient ground on which to decline to receive the property. If he tells the truth the agent of the company left two notices at the office of the consignees. One of these he says he left with some one writing at a desk in their office in their absence. Whether left on a desk in their absence, or with one of their clerks, it was sufficient. It might have been delivered to a clerk not a witness on the trial, as it seems they had several, of whom witness Raum was only one.
From an inspection of the record we apprehend the true [738]*738rules governing this case were overlooked or disregarded. The errors beginning in the declaration run through the entire trial and are embodied in the first instruction for the plaintiff, to wit: “If the jury believe from the evidence that the defendants received the poles in question as freight, at Wesson to carry to New Orleans, La., and that they failed to give the assignees notice of their arrival in a. reasonable time, and that thereby the poles were lost to the plaintiff, then they should find for the plaintiff and assess his damages according to the value of the poles at the time when the notice should have been given according to the evidence in this cause.”
Upon the theory of delivery of goods or notice, the measure of damages was not the full market value of the hoop-poles on their arrival in New Orleans (there being in this case no question of their prompt transportation to the depot of defendants), but the difference between the then value, and their value (alleged to have fallen off greatly) at the date of notice to the consignees, upon the assumption that such notice was unreasonably delayed. It was, upon this theory, the duty of the consignees, upon notice, early or late, to receive the freight and sell it for such price as- it would then command, crediting to the railroad company the proceeds, the difference between such sum and the amount which would have been realized when notice ought to have been given, being the damages which the company should make good to the plaintiff. It is a very extreme case which will warrant the refusal of freight, on account of depreciation or fall in the price, because' of or during delay.
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Tabbeei,, J.:
At tbe April term, 1868, of tbe Copiab county circuit court Allenson Tyson brought bis action against tbe Hew Orleans, Jackson & Great 1STortbern Railroad Company, for that, in 1867, tbe said Tyson, at Wesson, shipped upon tbe railroad of defendants, who were common carriers for hire, six thousand barrel boop-poles, of tbe value of $300, and two thousand half-barrel boop-poles, of tbe value ' of $100, to be carried to Hew Orleans, La., and there to be delivered to Smith & McKenna, for a reasonable charge, to be paid by Smith & McKenna, but tbe defendants, disregarding their undertaking in this behalf, and their duty as common carriers, so negligently and carelessly conducted themselves in regard to tbe said boop-poles, that they did not deliver tbe said boop-poles to tbe said Smith & McKenna, but, on tbe contrary, the said boop-poles were wholly lost to tbe plaintiff, to bis damage $500. Tbe defendant pleaded tbe general issue, with notice that they would prove tbe due arrival of tbe boop-poles at their depot in Hew Orleans, of which fact they notified tbe consignees of plaintiff.
Upon tbe trial tbe testimony was conflicting as to tbe value of tbe boop-poles, and as to tbe fact of notice of their arrival to tbe consignees. Tbe jury returned a verdict for tbe plaintiff for tbe full amount claimed, and from tbe judgment thereon tbe defendants below prosecute this writ of error.
Tbe declaration alleges an undertaking, on tbe part of tbe defendants, to deliver tbe boop-poles to Smith & McKenna, and claim damages for a failure so to deliver. We regard this as material. 2 Redf. on Railways, § 157, p. 50. There was no proof upon tbe trial of an undertaking to deliver [736]*736the goods to Smith. & McKenna. Without a special contract they would not be bound so to deliver, unless in accordance with their custom. . Delivery of freight at the end of routes to consignees is mostly confided to express companies, but was formerly, in some instances, undertaken by railroad companies, and is frequently done by other common carriers. There is no dispute in this case that the freight was promptly delivered at the depot of defendants. The testimony on the trial was, as to the usual notice to the consignees of the arrival of the freight, and trial proceeded upon the theory that the plaintiff was entitled to recover the value of the property at the date of its delivery at the depot. Notice to consignees by railroads, of the arrival of freight, depends upon the custom of the company. Redf. on Railways. Such appears to be the custom of the New Orleans, Jackson and Great Northern Railroad Company, and hence it was their duty to give it in this instance. The action, however, is not in form for a failure to give this notice. The rule of damages adopted by the court and jury was as in case of non-delivery of freight; the neglect to give the notice being treated as equivalent to non-delivery of the goods. The goods were shipped in November. The consignor was in New Orleans to look after his property, the last of December or early in January, thereafter. On that occasion, as testified by one of consignees, a clerk of the firm was sent to the depot of defendants to look after the hoop-poles, which, he states, were found in an unmarketable condition, hoop-poles having declined fully one-half in price from the date of shipment to the time of such examination. The witness says, “had they been delivered in time, he could have obtained the full market value, from forty-five to fifty dollars.” Both Smith & McKenna testify, that they never received any notice of the shipment or arrival of hoop-poles from any one, until the arrival in New Orleans of the consignor. The clerk of Smith & McKenna testifies, that they did receive a letter from the consignor, advising them of the intended shipment, and another letter a few weeks after, [737]*737inquiring if the poles had been received. The clerk states, that he went to the depot on the arrival of the consignor, to see the condition of the poles, and found them unmarketable, owing to their long exposure and the fall in the market. This witness further says, “I would not take them in that condition, after having remained there so long without giving us notice, and pay whát I thought the unjust charges made by the road.”
It appears from the testimony of Smith & McKenna that they employed several clerks, as McKenna speaks of George E. Raum, the last witness quoted, as “ one of our clerks.” Only this one was examined as a witness on the trial of this cause. The agent of the defendants, whose duty it was to notify consignees of the arrival of freight at the depot, testifies that he left a notice of the arrival of the hoop-poles with a person writing at a desk in the office of Smith & McKenna, with a verbal request to attend to them and take them away. Upon the theory of non-delivery, the rule of damages followed was correct. "We have been inclined, however, to consider this a case of damages for delay in giving notice to the consignees of the arrival of the freight. Smith & McKenna, the consignees, and their clerk, all testify to their refusal to receive the poles early in January, because of their unmarketable condition and depreciation of their market value, or fall in price from date of arrival to that time, a period of about six weeks, together with want of notice and high charges of freight, but depreciation in value or fall in market price is .pot a sufficient ground on which to decline to receive the property. If he tells the truth the agent of the company left two notices at the office of the consignees. One of these he says he left with some one writing at a desk in their office in their absence. Whether left on a desk in their absence, or with one of their clerks, it was sufficient. It might have been delivered to a clerk not a witness on the trial, as it seems they had several, of whom witness Raum was only one.
From an inspection of the record we apprehend the true [738]*738rules governing this case were overlooked or disregarded. The errors beginning in the declaration run through the entire trial and are embodied in the first instruction for the plaintiff, to wit: “If the jury believe from the evidence that the defendants received the poles in question as freight, at Wesson to carry to New Orleans, La., and that they failed to give the assignees notice of their arrival in a. reasonable time, and that thereby the poles were lost to the plaintiff, then they should find for the plaintiff and assess his damages according to the value of the poles at the time when the notice should have been given according to the evidence in this cause.”
Upon the theory of delivery of goods or notice, the measure of damages was not the full market value of the hoop-poles on their arrival in New Orleans (there being in this case no question of their prompt transportation to the depot of defendants), but the difference between the then value, and their value (alleged to have fallen off greatly) at the date of notice to the consignees, upon the assumption that such notice was unreasonably delayed. It was, upon this theory, the duty of the consignees, upon notice, early or late, to receive the freight and sell it for such price as- it would then command, crediting to the railroad company the proceeds, the difference between such sum and the amount which would have been realized when notice ought to have been given, being the damages which the company should make good to the plaintiff. It is a very extreme case which will warrant the refusal of freight, on account of depreciation or fall in the price, because' of or during delay.
In this case there was no demand and refusal, and no conversion of the property of plaintiff by defendants. The rule stated in case of delay is, therefore, the proper one. Any other in such case would. be unjust and iniquitous, leading to frauds and perjuries innumerable. If depreciation is caused by delay, or prices fall pending dilatory delivery, and these causes could, be made the ground of forcing freights upon railroads, they would become the [739]*739forced purchasers of all the millions of property in the country whereof the market value fluctuates. See 2 Redf. on Railways, § 151, sub. 6, 7, 8; ib. 163, 164, § 173, sub. 2, 4; ib. § 175, sub. 2; ib. 146; Sedgw. on Damages, 406.
If we correctly interpret the instruction copied above, it assumes that notice was given to the consignees, but was not given in reasonable time. The instruction then proceeds to state the rule of damages thus: “That if, thereby, the poles were lost to the plaintiff, the jury would assess the market value of the poles at the time when the notice should have been given.” According to the record, the poles were not “lost to the plaintiff,” but only that they had depreciated, and the price had fallen. If there was non-delivery, the rule of damages would be as first above referred to ; but in case of unreasonable delay in delivery, or in giving notice of arrival, the rule last mentioned would govern. Delivery or non-delivery, as of notice to assignees, or unreasonable delay in giving such notice, are questions of fact for the determination of the jury. Hence, both the above rules ought, perhaps, to have been stated to the jury as matters of law, with instructions, that, as they should find the facts, they would apply these rules. However, assuming the facts in the record to be correct, we are of the opinion that it was the duty of the consignees to receive and sell the hoop-poles, looking to the railroad company for the difference, as before explained, especially in view of the grounds upon which the refusal to receive the poles was put.
The letter from Wilks to the plaintiff, received in evidence, neither proved nor tended to prove any issue or fact in the case. It could not, possibly, have had any other effect than to prejudice the defendant’ s case. Its reception in evidence was, therefore, erroneous.
The judgment is reversed and the cause remanded.