BROWN, J., concurring in result; WALKER, J., concurring in the opinion of MR. JUSTICE BROWN; ALLEN, J., concurring.
After stating the case: In Harper v. Express Co., 148 N.C. 87-90, the Court, in speaking to the question of damages, recoverable by reason of wrongful delay in shipment of goods, said: "Where the goods shipped have a market value, and there is nothing to indicate the specific purpose for which they were ordered, these damages are usually the difference in the market value of the goods at the time for delivery, and that when they were in fact delivered. We have so held in DevelopmentCo. v. R. R., 147 N.C. 503, and Lee v. R. R., 136 N.C. 533, is to the same effect. When, however, the goods are ordered for a special purpose or for present use in a given way, and these facts are known to the carrier, he is responsible for the damages fairly attributable to the delay and in reference to the purpose or the use indicated. And it is not necessary always that those facts should be mentioned in the negotiations, or in express terms made a part of the contract, (151) but when they are known to the carrier under such circumstances, or they are of such a character that the parties may be fairly supposed to have them in contemplation in making the contract, such special facts become relevant in determining the question of damages," citing Moore on Carriers, 425, and Hutchinson on Carriers, sec. 1367. The modification of the general rule, suggested in this excerpt, is not infrequently called for in shipments of machinery, and, under several decisions of our Court on this subject, it may be that the facts now in evidence require that the question of substantial compensatory damages, arising by reason of notice or knowledge of special circumstances had at the time of shipment, should be submitted to the jury. Lumber Co. v.R. R., 151 N.C. 23; Sharpe v. R. R., 130 N.C. 613; Rocky MountMills v. R. R., 119 N.C. 693. Without final determination of this matter, however, we are of opinion that there was error in excluding the testimony offered by plaintiff to show definite notice of special circumstances given after shipment made. True, the bill of lading was issued to the witness, Gurganus, but it is also true that he had no personal interest in the goods or their shipment, but was acting, at the time, for the plaintiff company, "which had purchased the machinery, paid for it, received it upon arrival at Williamston and there paid the freight charges thereon and installed same in its plant." From these facts we
see no reason why the plaintiff company, as undisclosed principal, did not acquire and hold the general business rights and interest arising from the contract and under the general principles obtaining in case of such a relationship. Nicholson v. Dover, 145 N.C. 20; Barham v.Bell, 112 N.C. 131; Clark Skyles on Agency, 1155; Tiffany on Agency, 304, 305. In Barham v. Bell, supra, it was held: "Where a contract, not under seal, is made with an agent in his own name for an undisclosed principal, either the agent or principal, as if the the defendant, in the latter case, being entitled to be placed in the same position, at the time of the disclosure of the real principal, as if the agent had been the real contracting part," and in more general (152) terms in Clark Skyles, supra, it is said: "It is held, therefore, that where a person enters into a simple contract, other than a negotiable instrument, in his own name, but in fact as agent for an undisclosed principal, the principal may come in and sue the third party on the contract, and that this is true, not only where the agent disclosed the existence, but not the name of the principal, but also where he does not even disclose the existence of the principal." A principle undoubtedly correct, where, as in this case, neither the personality of the agent nor the claims of the third party against him, personally, require consideration. This then being the position of the parties, if the nominal consignee and the president of the plaintiff company gave the notice embodied in the proposed evidence, and there was negligent delay on the part of the defendant, after being afforded full and reasonable opportunity to correct the wrong, such negligence would constitute a tort, giving the plaintiff right to recover damages on facts as they then appeared. This is one principal difference in the elements of damages, obtaining in breach of contract and consequential damages arising from a tort. In the one case damages are recovered, as a rule, on relevant facts in the reasonable contemplation of the parties at the time the contract is made, and in the other on the facts existent or as they reasonably appeared to the parties at the time of the tort committed. The obligation of diligence imposed by the law on common carriers is continuous during the entire course of the carriage, and a negligent failure to perform such duty, causing special damage to a passenger or shipper of freight, is a tort arising whenever the same occurs. We must not be understood as holding that this consequential damages, to arise by reason of special circumstances, would commence at the very instant the notice was given to some local agent of the company. The notice, as indicated, must be such as to afford fair and reasonable opportunity to avoid further delay under conditions as they existed when the notice was received, and damages arising thereafter might then be properly estimated under the circumstances which the notice discloses. There is
suggestion, from authoritative sources, that in these continuous contracts of carriage, notice of special circumstances, given during the course of performance would be relevant as affecting the question of the amount of damages even when the action could only (153) be considered as one for a breach of contract. This was made by Bramwell, Baron, in Gee v. R. R., H. N., 2116 (Exch.), and referred to in Wood's Mayne on Damages, 35. This suggestion was applied by a Texas court, in R. R., v. Gilbert, and was at first affirmed on appeal, but was afterwards rejected, the Court of Civil Appeals holding, on a rehearing, that notice given, after contract, of shipment made should not be allowed to affect the question. R. R., v. Gilbert
4 Texas Civil Appeals, 366. In a subsequent case, however, and on a different state of facts the Supreme Court of Texas seems to have modified this ruling. Bourland v. R. R., 99 Tex. 407[99 Tex. 407]. The digest of this case as it appears in 122 Am. State Reports, being in part as follows: "The rule that damages of a special or exceptional kind for delay in the shipment of goods can not be recovered in the absence of notice to the carrier at the time of making the contract of carriage of the particular conditions under which the damages are likely to arise as the result of the delay is not unbending nor applicable to every case."
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BROWN, J., concurring in result; WALKER, J., concurring in the opinion of MR. JUSTICE BROWN; ALLEN, J., concurring.
After stating the case: In Harper v. Express Co., 148 N.C. 87-90, the Court, in speaking to the question of damages, recoverable by reason of wrongful delay in shipment of goods, said: "Where the goods shipped have a market value, and there is nothing to indicate the specific purpose for which they were ordered, these damages are usually the difference in the market value of the goods at the time for delivery, and that when they were in fact delivered. We have so held in DevelopmentCo. v. R. R., 147 N.C. 503, and Lee v. R. R., 136 N.C. 533, is to the same effect. When, however, the goods are ordered for a special purpose or for present use in a given way, and these facts are known to the carrier, he is responsible for the damages fairly attributable to the delay and in reference to the purpose or the use indicated. And it is not necessary always that those facts should be mentioned in the negotiations, or in express terms made a part of the contract, (151) but when they are known to the carrier under such circumstances, or they are of such a character that the parties may be fairly supposed to have them in contemplation in making the contract, such special facts become relevant in determining the question of damages," citing Moore on Carriers, 425, and Hutchinson on Carriers, sec. 1367. The modification of the general rule, suggested in this excerpt, is not infrequently called for in shipments of machinery, and, under several decisions of our Court on this subject, it may be that the facts now in evidence require that the question of substantial compensatory damages, arising by reason of notice or knowledge of special circumstances had at the time of shipment, should be submitted to the jury. Lumber Co. v.R. R., 151 N.C. 23; Sharpe v. R. R., 130 N.C. 613; Rocky MountMills v. R. R., 119 N.C. 693. Without final determination of this matter, however, we are of opinion that there was error in excluding the testimony offered by plaintiff to show definite notice of special circumstances given after shipment made. True, the bill of lading was issued to the witness, Gurganus, but it is also true that he had no personal interest in the goods or their shipment, but was acting, at the time, for the plaintiff company, "which had purchased the machinery, paid for it, received it upon arrival at Williamston and there paid the freight charges thereon and installed same in its plant." From these facts we
see no reason why the plaintiff company, as undisclosed principal, did not acquire and hold the general business rights and interest arising from the contract and under the general principles obtaining in case of such a relationship. Nicholson v. Dover, 145 N.C. 20; Barham v.Bell, 112 N.C. 131; Clark Skyles on Agency, 1155; Tiffany on Agency, 304, 305. In Barham v. Bell, supra, it was held: "Where a contract, not under seal, is made with an agent in his own name for an undisclosed principal, either the agent or principal, as if the the defendant, in the latter case, being entitled to be placed in the same position, at the time of the disclosure of the real principal, as if the agent had been the real contracting part," and in more general (152) terms in Clark Skyles, supra, it is said: "It is held, therefore, that where a person enters into a simple contract, other than a negotiable instrument, in his own name, but in fact as agent for an undisclosed principal, the principal may come in and sue the third party on the contract, and that this is true, not only where the agent disclosed the existence, but not the name of the principal, but also where he does not even disclose the existence of the principal." A principle undoubtedly correct, where, as in this case, neither the personality of the agent nor the claims of the third party against him, personally, require consideration. This then being the position of the parties, if the nominal consignee and the president of the plaintiff company gave the notice embodied in the proposed evidence, and there was negligent delay on the part of the defendant, after being afforded full and reasonable opportunity to correct the wrong, such negligence would constitute a tort, giving the plaintiff right to recover damages on facts as they then appeared. This is one principal difference in the elements of damages, obtaining in breach of contract and consequential damages arising from a tort. In the one case damages are recovered, as a rule, on relevant facts in the reasonable contemplation of the parties at the time the contract is made, and in the other on the facts existent or as they reasonably appeared to the parties at the time of the tort committed. The obligation of diligence imposed by the law on common carriers is continuous during the entire course of the carriage, and a negligent failure to perform such duty, causing special damage to a passenger or shipper of freight, is a tort arising whenever the same occurs. We must not be understood as holding that this consequential damages, to arise by reason of special circumstances, would commence at the very instant the notice was given to some local agent of the company. The notice, as indicated, must be such as to afford fair and reasonable opportunity to avoid further delay under conditions as they existed when the notice was received, and damages arising thereafter might then be properly estimated under the circumstances which the notice discloses. There is
suggestion, from authoritative sources, that in these continuous contracts of carriage, notice of special circumstances, given during the course of performance would be relevant as affecting the question of the amount of damages even when the action could only (153) be considered as one for a breach of contract. This was made by Bramwell, Baron, in Gee v. R. R., H. N., 2116 (Exch.), and referred to in Wood's Mayne on Damages, 35. This suggestion was applied by a Texas court, in R. R., v. Gilbert, and was at first affirmed on appeal, but was afterwards rejected, the Court of Civil Appeals holding, on a rehearing, that notice given, after contract, of shipment made should not be allowed to affect the question. R. R., v. Gilbert
4 Texas Civil Appeals, 366. In a subsequent case, however, and on a different state of facts the Supreme Court of Texas seems to have modified this ruling. Bourland v. R. R., 99 Tex. 407[99 Tex. 407]. The digest of this case as it appears in 122 Am. State Reports, being in part as follows: "The rule that damages of a special or exceptional kind for delay in the shipment of goods can not be recovered in the absence of notice to the carrier at the time of making the contract of carriage of the particular conditions under which the damages are likely to arise as the result of the delay is not unbending nor applicable to every case."
The question is not free from difficulty, nor is it necessary to determine it on the present appeal, for numerous and well considered decisions in this jurisdiction are to the effect that for breach of duty in reference to a contract of carriage, on the part of common carrier doing business under a corporate franchise, one having a right by contract to enforce performance, may recover damages for a tort and have the relief administered and his rights determined as in that class of actions. Williamsv. R. R., 144 N.C. 498-505; Purcell v. R. R., 108 N.C. 414;Bowers v. R. R., 107 N.C. 721. In Purcell's case, and on this question, it was held: "1. It is the duty of a common carrier to provide sufficient means of transportation for all freight and passengers which its business naturally brings to it, and an unusual occasion by which a greater demand upon it is temporarily made will not relieve it of the obligation, if by the use of reasonable foresight, it could have been provided for. 2. A person who has sustained injuries by reason of the failure of a railroad company to provide proper means of transportation or operate its trains as required by the statute (Code, sec. 1963), may bring an action on contract, or in tort, independent (154) of the statute."
And in Bowers' case, supra, the ruling was as follows: "1. A complaint alleging that the defendant, a common carrier, failed to safely carry certain articles of freight according to contract, and `so negligently and carelessly conducted in regard to the same that it was greatly
damaged,' states facts sufficient to constitute a tort," and in Williams'case, supra, Associate Justice Walker, for the Court, said: "It is established, therefore, by the authorities that when the carrier has wrongfully set the passenger down short of or beyond his destination, or has failed to stop for him and has thereby imposed upon him the necessity of reaching his destination by other means, the carrier must respond in damages for the wrong, whether the action be brought for the breach of the contract or for the tort, and the rule applies in this case if the plaintiffs presented themselves at the proper place and gave the required signal at such time as enabled the engineer to stop the train for them at the station," citing 3 Hutchinson on Carriers (3 Ed.), sec. 1429. There is nothing in the record which confines the plaintiff to recovery for a breach of contract. On the contrary, the entire facts are set out by the pleader, including specific statement of the special damages claimed. And in various sections of the complaint the delay is alleged to have been caused by the carelessness and negligence of the defendant company and its agents. In such case the plaintiff, if the facts justify it, may recover on the theory of tort or contract. Speaking to this question, in Williams' case, supra, it is further said: "All forms of action are abolished, and we have now but one form for the enforcement of private rights and the redress of private wrongs which is denominated a civil action, and the Court gives relief according to the facts alleged and established." In Hansley v. R. R., 117 N.C. 570, a case much relied upon by the defendant, the Court chiefly considered and passed upon the right of a passenger, on a breach of contract of carriage by a common carrier, to punitive or exemplary damages and the question involved in this appeal was not directly presented. While the reasoning of the principal opinion in Hansley's case is favorable to defendant's (155) position, the decision of the Court, reaffirming, as it did, Purcell's case, supra, which was an action in tort for like cause, is in support of our present ruling. The plaintiff then had a right to sue in tort, and, if his cause of action is established, recover damages under circumstances existent at the time the same was committed, and the evidence offered, tending as it did to show conditions affecting the measure of his recovery, should have been received. There is nothing here said which is intended to militate against the ruling of this Court, in Helms v. Telegraph Co., 143 N.C. 386, and other cases to same effect, "That a party who is not mentioned in a telegraph message or whose interest therein is not communicated to the company, can not recover substantial damages for mental anguish." In Helms' case the contract had been finally broken and the same was no longer in the course of performance, and the question at issue being the amount of damages for "mental anguish," the personality of the party and his
relationship to the subject of the message was of the substance and must be made to appear. But the principle does not necessarily obtain when redress is sought for breach of a business contract in which, as stated, the personality of the nominal parties in no way affects the matter. In such case, as heretofore said, the rights of the parties may be shown and dealt with under the ordinary doctrine that an undisclosed principal may avail himself of rights acquired by the contract of his agent. For the error in rejecting the evidence offered, the plaintiff is entitled to a new trial and it is so ordered.
New trial.