Cook., J.,
delivered the opinion of the court.
Under the firm name of Parish & Co., Mr. S. B. F. Parish was engaged in the business of buying and selling cotton at Charleston, in January, 1910. On the 3d day of January, having an opportunity to buy forty bales of staple cotton, he called up his factor at Greenwood, described the cotton to him, and made a contract with the factor to sell the cotton at a stipulated price, should the same reach Greenwood within the week. The • 3d of January fell upon Monday. After making arrangements to sell the cotton upon the terms above stated, Mr. Parish •called up the station agent of appellee and secured from him a promise to place cars upon the sidetrack of the Farmers’ Warehouse, the place where the cotton was stored, that afternoon, to be loaded the next morning, whereupon Parish purchased the cotton to be delivered on the contract. The next morning, the 4th, Mr. Parish secured laborers to load the cotton; but when he reached the warehouse the cars had not been placed according to agreement, and he then called the railroad agent over the telephone and inquired why the cars had not been placed. Then it was that the agent informed appellant that on the morning before the town authorities had excavated a trench under and across the right of way of the company, which had so weakened the track as to render it unsafe to haul the cars over the sidetrack. Parish then advised the agent of the contract, its time limit, and [294] the importance of his having the cotton in Greenwood in time, and insisted that something be done. The section foreman was also advised of the situation, but he said it was not his business to fix the track so that the cars might be placed. The upshot of the whole matter was that appellee was not furnished cars until the 10th of January. In the meantime, the cotton market had weakened, the sale of the cotton was impossible at the stipulated price, and appellee lost a tidy sum of money on account of his failure to deliver the cotton within the prescribed time. With these facts before the jury, the trial court instructed th'e jury to return a verdict for plaintiff for nominal damages only, which was accordingly done; wherefore, this appeal.
Unaided by counsel it is possible that we would be unable to apprehend upon what theory this instruction was given by the learned trial judge.
In the first place, counsel insist that, staple cotton having no fixed market value, it is impossible to liquidate the damages suffered by appellant. The evidence discloses the damages suffered by appellant. The evidence discloses that staple cotton is not quoted upon exchanges, which we understand to mean that cotton quotations refer to upland, or short staple cotton alone, and from this starting point it is argued that staple cotton has no market value. We cannot accede to this proposition, for the “market value” of a commodity, in its last analysis, means the price which it will bring in cash from a buyer who is willing to pay its value. It would, no doubt, be a shock to the producers of long staple cotton should this court announce as a matter of law the value of their product cannot be proven in the courts, because it is not embraced in the daily market quotations.
Aside from this, the damages of appellant were satisfactorily and clearly established by showing the price at which the cotton was sold and the price received after the expiration of the time limit, and by proving that the slump in prices was occasioned by appellant’s failure to ship the cotton within the prescribed time, and that his default [295] was caused by tbe. carrier’s negligence. Tbe evidence shows that the sale of the cotton was made through a cotton broker, at a stipulated price; that the broker actually sold the cotton at the proven figures, if delivered within the week. But it is ■ contended that no written memorandum of the contract was made between the broker and appellant, or between the broker and the purchaser, and for' this reason no recovery .could have been had under the contract. As between the seller and the purchaser, this is true; but it does not follow that the statute of frauds can be used by the carrier to excuse itself from its negligence — this privilege was personal to the purchaser. Besides, the evidence of the broker demonstrates that, had the party to whom he had sold the cotton breached his contract, he considered it his duty and he would have protected Mr. Parish.
Counsel on opposite sides of this controversy find no common ground upon which to stand — they are as far a part asthe poles. It seems to us that there is but one question involved, and that is, was the carrier prevented by a superior force from performing its plain duty to furnish means of transportation within a reasonable time; it appearing that there was such failure on its part. It appears, not very clearly, that the town authorities had, in the process of digging a public sewer, excavated under the track serving the warehouse, and that this excavation so weakened the track that it would have been hazardous to run trains over it. There is no excuse given by the carrier — no witness was introduced in its behalf — but certain scraps' of evidence crop out in the testimony of plaintiff’s witnesses, which are relied on as a defense. The plaintiff said that the station agent told him that the town had excavated the ditch under the track. Mr. Barnes, another witness for the plaintiff, said he understood that the work was done by the town. This and other like statements form the only basis for the contention of appellee.
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Cook., J.,
delivered the opinion of the court.
Under the firm name of Parish & Co., Mr. S. B. F. Parish was engaged in the business of buying and selling cotton at Charleston, in January, 1910. On the 3d day of January, having an opportunity to buy forty bales of staple cotton, he called up his factor at Greenwood, described the cotton to him, and made a contract with the factor to sell the cotton at a stipulated price, should the same reach Greenwood within the week. The • 3d of January fell upon Monday. After making arrangements to sell the cotton upon the terms above stated, Mr. Parish •called up the station agent of appellee and secured from him a promise to place cars upon the sidetrack of the Farmers’ Warehouse, the place where the cotton was stored, that afternoon, to be loaded the next morning, whereupon Parish purchased the cotton to be delivered on the contract. The next morning, the 4th, Mr. Parish secured laborers to load the cotton; but when he reached the warehouse the cars had not been placed according to agreement, and he then called the railroad agent over the telephone and inquired why the cars had not been placed. Then it was that the agent informed appellant that on the morning before the town authorities had excavated a trench under and across the right of way of the company, which had so weakened the track as to render it unsafe to haul the cars over the sidetrack. Parish then advised the agent of the contract, its time limit, and [294] the importance of his having the cotton in Greenwood in time, and insisted that something be done. The section foreman was also advised of the situation, but he said it was not his business to fix the track so that the cars might be placed. The upshot of the whole matter was that appellee was not furnished cars until the 10th of January. In the meantime, the cotton market had weakened, the sale of the cotton was impossible at the stipulated price, and appellee lost a tidy sum of money on account of his failure to deliver the cotton within the prescribed time. With these facts before the jury, the trial court instructed th'e jury to return a verdict for plaintiff for nominal damages only, which was accordingly done; wherefore, this appeal.
Unaided by counsel it is possible that we would be unable to apprehend upon what theory this instruction was given by the learned trial judge.
In the first place, counsel insist that, staple cotton having no fixed market value, it is impossible to liquidate the damages suffered by appellant. The evidence discloses the damages suffered by appellant. The evidence discloses that staple cotton is not quoted upon exchanges, which we understand to mean that cotton quotations refer to upland, or short staple cotton alone, and from this starting point it is argued that staple cotton has no market value. We cannot accede to this proposition, for the “market value” of a commodity, in its last analysis, means the price which it will bring in cash from a buyer who is willing to pay its value. It would, no doubt, be a shock to the producers of long staple cotton should this court announce as a matter of law the value of their product cannot be proven in the courts, because it is not embraced in the daily market quotations.
Aside from this, the damages of appellant were satisfactorily and clearly established by showing the price at which the cotton was sold and the price received after the expiration of the time limit, and by proving that the slump in prices was occasioned by appellant’s failure to ship the cotton within the prescribed time, and that his default [295] was caused by tbe. carrier’s negligence. Tbe evidence shows that the sale of the cotton was made through a cotton broker, at a stipulated price; that the broker actually sold the cotton at the proven figures, if delivered within the week. But it is ■ contended that no written memorandum of the contract was made between the broker and appellant, or between the broker and the purchaser, and for' this reason no recovery .could have been had under the contract. As between the seller and the purchaser, this is true; but it does not follow that the statute of frauds can be used by the carrier to excuse itself from its negligence — this privilege was personal to the purchaser. Besides, the evidence of the broker demonstrates that, had the party to whom he had sold the cotton breached his contract, he considered it his duty and he would have protected Mr. Parish.
Counsel on opposite sides of this controversy find no common ground upon which to stand — they are as far a part asthe poles. It seems to us that there is but one question involved, and that is, was the carrier prevented by a superior force from performing its plain duty to furnish means of transportation within a reasonable time; it appearing that there was such failure on its part. It appears, not very clearly, that the town authorities had, in the process of digging a public sewer, excavated under the track serving the warehouse, and that this excavation so weakened the track that it would have been hazardous to run trains over it. There is no excuse given by the carrier — no witness was introduced in its behalf — but certain scraps' of evidence crop out in the testimony of plaintiff’s witnesses, which are relied on as a defense. The plaintiff said that the station agent told him that the town had excavated the ditch under the track. Mr. Barnes, another witness for the plaintiff, said he understood that the work was done by the town. This and other like statements form the only basis for the contention of appellee.
Conceding, for argument’s sake, that there is sufficient evidence in the record to warrant a finding that the ob[296] struction of transportation was caused by the town, by what and upon whose authority the public work was being done does not appear. The track was put out of commission Monday morning. A ditch three or four feet wide and six to eight feet in depth was run diagonally under the track, two or three crossties were removed, and only the rails spanned the ditch. This was the sum total of the obstruction, and why it was not a simple matter, requiring but little skill and labor, the expenditure of a small amount of money, and the consumption of only a few hours, to restore traffic over this spur, is beyond our power to comprehend. The public service corporation owes a duty to its customers, and some valid reason must be given why it failed to perform this duty, and mere conjecture or argumentation from fragmentary facts will not suffice. Here was an unusual, and to us inexplicable, delay, when we recall the many stupendous tasks performed in a marvelously short time by the well-organized forces of great railway sustems like the one in the present case. The bridging of this small ditch was mere child’s play compared to others accomplished within a few hours, according to our views and observations, and the loss to an enforced customer of the amount lost in the present instance is no mere trifling matter, and he should not be denied a trial of his case, unless it appears as a matter of fact that a superior force prevented the carrier from doing its plain duty. There may be good reasons for the delay, but from the record we find no semblance of excuse after giving to the proven facts a much broader significance than they deserve. It may be that it was impossible to repair the track, but this must appear as an uncontroverted fact before the court will be authorized to take the decision of the case from the jury. The question is: Does the record show that the delay was unavoidable under the circumstances? And the answer is in the negative.
Reversed and remanded.
Smith, C. J., took no part in the decision of this case.