Opinion
No. 28330.
January 20, 1930.
1. CARRIERS. Allowance of damages against railroad for failure to deliver coal, in such amount at which coal could have been sold at retail, held erroneous.
Allowance of damages to consignee of coal by reason of total failure of delivery, in such amount at which consignee could have sold coal at retail, less drayage charges therefor, held erroneous, in absence of showing that railroad company knew that coal was to be sold at retail and presumably at a profit.
2. CARRIERS. Proper measure of damages for breach of contract to deliver personal property is fair average market value at time and place of delivery.
Proper measure of damages for breach of contract to deliver personal property is fair average market value at the time and place of delivery, or amount that would have been necessary for shipper or owner to pay in open market for such quantity and kind as carrier failed to deliver.
3. CARRIERS. Common carrier cannot be held liable for special damages, unless shipper gives notice thereof at time of delivering goods.
Common carrier of freight cannot be held liable for special damages, unless shipper gives notice of such damages at the time goods are delivered to carrier.
4. CARRIERS. Carrier's knowledge that consignee was in retail coal business held not to authorize recovery, for coal not delivered, of amount consignee could have sold coal at retail, less drayage charges therefor.
That railroad carrier knew consignee was in the retail coal business held not to authorize consignee's recovery of special damages, for coal not delivered, in such amount as consignee could have sold coal at retail, less drayage charges therefor.
APPEAL from circuit court of Coahoma county, Second district. HON. WM. A. ALCORN, JR., Judge.
Burch, Minor McKay, of Memphis, Tenn., and Cutrer Smith, of Clarksdale, for appellant.
Where a railroad company fails to deliver a shipment of personal property, which it has undertaken to transport, the damages to be recovered by the shipper or consignee are the actual loss which the shipper or consignee has sustained by reason of the breach of the contract of carriage. The "actual loss" is said to be the loss "of what the contractee would have had if the contract had been performed." The damages are to be measured at the moment when the contract is broken. The court will not look beyond that or concern itself with later events or remote consequences.
McCall-Dinsmore Co. v. C., M. St. P. Ry. Co., 253 U.S. 97; Southern Pac. Co. v. Darnell Taenzer Co., 245 U.S. 531; U.S. v. New River Collieries, 262 U.S. 341; Canadian Pac. Co. v. Wieland, 226 Fed. 670; Railroad v. Ragsdale, 46 Miss. 458; Crail v. Illinois Central R. Co., 13 F.2d 459, 461; Grand Tower Mining Co. v. Phillips, 90 U.S. 471; Y. M.V.R.R. Co. v. Delta Grocery Cotton Co., 134 Miss. 846; M. M. Transportation Co. v. Branch, 282 Fed. 494; Lawrence v. Porter, 63 Fed. 62.
The rule is that profits lost by breach of contract, expected to be realized from the resale of a commodity, are special damages, and are not recoverable in the absence of notice, at the time the contract was made of special circumstances from which it may be reasonably inferred that the parties contemplated loss of profits as an element of damages in the event the contract was breached. The rule further is that mere knowledge on the part of the seller that the goods were being purchased by a dealer for resale is not enough to support a recovery of profits as special damages.
Mitsubishi Shoji Kaisha, Ltd., v. Davis, 291 Fed. 882; Champion Spark Plug Co. v. Automobile Sundries Co., 273 Fed. 74; Setton v. Eberle-Albrecht Flour Co., 258 Fed. 905; Sigafus v. Porter, 179 U.S. 116; Smith v. Boles, 132 U.S. 125; Railroad v. Ragsdale, 46 Miss. 458, 483; Hadley v. Baxendale, 9 Exch. 341; 56 A.L.R., page 1184; Railroad v. Jacobson, 112 Miss. 158; Railroad v. A.J. Lyon Co., 107 Miss. 777; Railroad v. Allen, 106 Miss. 275; Chair Company v. Railroad, 105 Miss. 861; Express Company v. Burk, 104 Miss. 275.
Maynard, Fitzgerald Venable, of Clarksdale, for appellee.
The full actual loss for which a carrier is liable under the Cummins Amendment is the equivalent of the price for which the goods would sell at the point of destination, and not the invoice price or the price paid plus freight. And where the consignee is a retail dealer, known to be such to the railroad company, the measure of damages would be the value of the goods to him, to-wit: what he could have gotten for them had they been delivered.
Y. M.V.R.R. Co. v. Delta Grocery Cotton Co., 134 Miss. 846; Chicago, etc., R.R. Co. v. McCall-Dinsmore Co., 253 U.S. 97, 64 L.Ed. 801, 260 Fed. 835; Leo-minister Fuel Company v. Railroad Company (Mass. case), 154 N.E. 831; Heidritter Lumber Company v. Central Railroad Company, 100 N.J.L. 402, 122 A. 691, 125 A. 926; Riley-Wilson Grocery Co. v. Saint Louis S.F.R. Co. (Mo. case), 184 S.W. 915; Henry Perkins Co. v. American Express Co., 199 Mass. 561, 85 N.E. 895.
Profits are recoverable where their loss is approximate and certain, constituting a breach of duty.
Howard v. Stillwell Mfg. Co., 139 U.S. 199, 35 L.Ed. 147.
Argued orally by C.H. McKay, for appellant.
An interstate shipment of a carload of coal came into the hands of appellant railroad company for transportation to appellee as consignee at Clarksdale. There was a total failure of delivery, and appellee in a suit for the damages recovered as such the amount of the price at which appellee could have sold the said coal at retail, less the drayage charges for retail delivery.
"The true measure of damages for the breach of a contract to transport and deliver coal or other like personal property at a certain place and time is the fair average market value at the time and place of delivery of such a quantity of like coal or other property as the contractor failed to deliver as agreed. It is the amount it would have been necessary for the shipper or owner to pay in the open market at the time and place of delivery for such a quantity and kind of coal or other property as the carrier failed to deliver as it agreed." Crail v. Illinois Cent. R. Co. (C.C.A.), 13 F.2d 459, pages 461, 462. See, also, 4 R.C.L., pp. 929, 930; 10 C.J., pp. 395, 396; Mobile, J. K.C. Railroad Co. v. Cotton Co., 94 Miss. 351, 48 So. 231; Yazoo M.V. Railroad Co. v. Delta Grocery Cotton Co., 134 Miss. 846,
98 So. 777; Yazoo M.V. Railroad Co. v. M. Levy Sons, 141 Miss. at page 208, 106 So. 525.
Appellee seeks to justify the recovery on the basis of resale prices at retail, because the railroad company knew that the coal was to be sold at retail, and presumably at a profit in such resales. But the showing in this regard is only the general one that the railroad company knew that appellee was in the retail coal business. It is "the settled law of this state that a common carrier of freight cannot be held for special damages, unless the shipper gives notice of such damages at the time the goods are delivered to the carrier." Yazoo M.V.R. Co. v. Allen, 106 Miss. 275, 63 So. 572, 573; Southern Pac. R. Co. v. A.J. Lyon Co., 107 Miss. at page 784, 66 So. 209, Ann. Cas. 1917D, 171; Yazoo M.V.R. Co. v. Jacobson, 112 Miss. 158, 72 So. 889. If, in order to take a case out of the general rule in respect to the measure of damages and carry it into the exception, no more were required than a general knowledge that the goods were intended for resale, then as a practical consequence the exception would become the rule, because of the fact that the greater part of all the goods transported by railroads are known to be intended for resale at a profit; in other words, as it has been tersely expressed, "the exception would swallow up the rule." Such a consequence would not be admissible as a practicable matter, even if the principle were not so well settled against it. The Federal cases are in accord with our own on the subject. Mitsubishi Shoji Kaisha, Ltd., v. Davis (D.C.), 291 F. 882; Champion Spark Plug Co. v. Automobile Sundries Co. (C.C.A.), 273 F. 74; Setton v. Eberle-Albrecht Flour Co. (C.C.A.), 258 F. 905; and the numerous authorities cited in the opinions in those cases.
It follows that the trial court applied an erroneous measure of damages, and that the judgment must be reversed and the cause remanded.
Reversed and remanded.