Arrington v. Wilmington & Weldon R. R. Co.

• Decision Date: 31 December 1858
• Citation: 51 N.C. 68,72 Am.Dec. 559,6 Jones 68
• Court: North Carolina Supreme Court
• Parties: THOMAS C. ARRINGTON v. WILMINGTON & WELDON R. R. CO.

6 Jones (NC) 68

51 N.C. 68

72 Am.Dec. 559

THOMAS C. ARRINGTON

v.WILMINGTON & WELDON R. R. CO.

Supreme Court of North Carolina.

December Term, 1858.

Where an article was delivered to a common carrier, to be delivered to a factor, at a certain market, who had been instructed not to sell until ordered, and such carrier delivered it to a factor at a different market, who had no instructions concerning it, and was by him immediately sold, upon its appearing that the article in question rose in price, from that day until the suit was brought: Held that in a suit against such common carrier for misfeasance, the plaintiff was entitled to recover the highest price attained by the article within that period, such suit having been brought within a reasonable time.

Held further, that the receipt of the proceeds of the sale from the factors, making it, was no bar to the recovery of damages for this misfeasance.

ACTION on the CASE, tried before SAUNDERS, J., at the last Fall Term, 1857, of Nash Superior Court.

This is an action on the case, against the defendants as common carriers, and was submitted to the Court and jury on the following facts: On the 5th of March, 1856, the plaintiff delivered at the defendant's depot, at Battleborough, nine bales of cotton, weighing 3953 lbs. in good order, and with the plaintiff's name on them, with orders to the company's agent at that place, to forward them by the road to his factors, Messrs. Odom & Clements, in Norfolk, Virginia, and the agent accepted them for that purpose. Instead of marking the bales in the name of Odom & Clements, as the consignees, they were entered on the books and way-bill of the company, as consigned to Messrs. McIlwaine, Son & Co., of Petersburg, in Virginia. The cotton was accordingly sent by the defendant's agent to McIlwaine, Son & Co., who received it, and sold it on the 28th of March, 1856, at 9 3/8 cents a pound; and both in Petersburg and Norfolk, that was the price on that day, and the charges of factors were the same. The plaintiff advised Odom & Clements of his intention to forward the cotton to them, and ordered them to hold it until he should direct a sale, as he thought it would rise. He was informed afterwards, by them, that they had not received the cotton, and on the 25th of April, 1856, discovered from the company's books, that it had not been sent to Norfolk, but to Petersburg, as before-mentioned. On the first of May following, McIlwaine, Son & Co., rendered to the plaintiff an account of sales, and sent him the nett proceeds, which he received. The price of cotton advanced rapidly and regularly after the sale, and on the first of May, was twelve cents, and in September, 12 5/8, of which the plaintiff was regularly advised by Odom & Clements. Storage was thirty cents per bale for the first month, and for each succeeding one, twelve and a half cents. The action was commenced August the 12th, 1856. The question, on the trial, was as to the amount of damages; and the presiding Judge instructed the jury that, as the rise and fall of the cotton was contingent, the plaintiff was only entitled to nominal damages, and there was a verdict for six pence, and judgment, and the plaintiff appealed.

Batchelor and Miller, for the plaintiff .

Moore and Dortch, for the defendant .

RUFFIN, J.

In actions of this kind, and, indeed for torts by misfeasance generally, there seems to be no reason why the damages, assessed, should be nominal only, and not such as are commensurate with those sustained, since it must be the purpose of justice and law, to compensate the party injured, when practicable, for the actual loss arising naturally and directly from the wrong. The question, then, is, what loss to the plaintiff was caused by the conduct of the defendant. It was manifestly a real loss, to the amount of the difference in the proceeds of the cotton, if the defendant had, as in duty bound, carried it to the plaintiff's consignees, to be disposed of under his contemporaneous instructions, to hold it for...