Story Lumber Co. v. Southern Railway Co.

65 S.E. 460, 151 N.C. 23, 1909 N.C. LEXIS 183

• Court: Supreme Court of North Carolina
• Decided: September 15, 1909
• Status: Published

Opinion

MANNING, J.

The defendant did not, as appears from the record of the trial, contest that it had carelessly permitted an unreasonable delay in the transportation of the edger, nor did it contest the rule laid down by his Honor for the admeasurement of the plaintiff’s damages, if it was entitled to more than nominal damages. His Honor could not have granted the defendant’s motion to nonsuit the 'plaintiff, because the unreasonable delay, the breach of the contract of shipment, being uncontested by the defendant, the plaintiff was, in any view, entitled to recover nominal damages. But the defendant’s exceptions do present as the only material point in the appeal the question whether there was any evidence proper to be submitted to the jury and from which they could reasonably find that plaintiff had sustained more than nominal damages. The facts relied upon by the plaintiff to sustain its contention are: (1) its name, indicating the character of business engaged in by it; (2) the nature of the article shipped, to-wit, an edger, a machine used by sawmills,weighing aboutl,000pounds,indicating an article not of general use, but for particular purpose; (3-) that the machine was shipped unboxed, uncovered and open, and thus observable by the defendant; (4) being a single machine, indicating that it was intended to be used in conjunction with other machinery; (5) the destination, being a section in which lumber was manufactured. All of which were under defendant’s observation or knowledge at the time the contract of carriage was made. The admissions at the trial remove any suggestion that there was any express notice to the defendant, at the time of making the contract of carriage, that this machine was “ordered for a special purpose or for present use in a given way.”

With the above facts open to the defendant, did they import or could the jury reasonably infer, that a breach of the contract of shipment would occasion an injury to the plaintiff greater than nominal damages?

The question was very recently presented to this Court in Furniture Co. v. Express Co., 148 N. C., 87, and is there fully considered in an able.opinion by Mr. Justice IIolee. By that decision and the decision of this Court in other cases it is settled that a plaintiff can recover more than nominal damages for breach of contract by unreasonable delay in performance: (1) when the special purpose or present use in a given way is expressly made a part of the contract or enters into the negotiations of the parties, (2) or when the article shipped is of such character that the .parties may be fairly supposed to have had in contemplation, at the time of making the contract, the special purpose or present use in a given way. Lewark v. Railroad, 137 N. C., 383; Sharp v. Railroad, 130 N. C., 613; Neal v. Hardware Co., 122 N. C., 104; Rocky Mount Mills v. Railroad, 119 N. C., 693; Foard v. Railroad, 53 N. C., 235.

Guided by these cases, we are of the opinion that the evidence offered in this case was sufficient, to carry the case to the jury, and was of such character that the jury could fairly presume knowledge by the defendant that there was a special purpose or a present use for the machine, and that a failure by the defendant to perform its contract would result in more than nominal damages to the plaintiff. This is our conclusion, after a careful consideration of the authorities, including those cited by the attorneys for the defendant in their well-prepared brief. We are therefore of the opinion that the exceptions taken by the defendant at the trial below cannot be sustained, and the judgment is

Affirmed.