Chicago, R. I. & P. Ry. Co. v. King

• Decision Date: 24 June 1912
• Citation: 148 S.W. 1035
• Parties: CHICAGO, R. I. & P. RY. CO. v. KING.
• Court: Arkansas Supreme Court

148 S.W. 1035

CHICAGO, R. I. & P. RY. CO. v. KING.

Supreme Court of Arkansas.

June 24, 1912.

Appeal from Circuit Court, Lonoke County; Eugene Lankford, Judge.

Action by W. S. King against the Chicago. Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Thos. S. Buzbee and Jno. T. Hicks, both of Little Rock, for appellant. Chas. A. Walls, of Lonoke, for appellee.

FRAUENTHAL, J.

This is an action instituted by W. S. King for the recovery of damages alleged to have arisen out of a delay in the transportation and delivery of a shipment of lavatories from Trenton, N. J., to Hot Springs, Ark. The defendant interposed a general demurrer to the complaint, which was overruled, and it thereupon filed an answer, in which it denied the material allegations thereof. The case was then submitted to the court for trial and determination. It made a detailed statement of its findings of fact, and rendered judgment for plaintiff for damages in the sum of $206. The damages claimed by the plaintiff were mainly special or consequential damages, growing out of special or peculiar circumstances in his use of and need for the lavatories.

It is urged by counsel for defendant that the complaint does not allege facts sufficient as a basis for special damages. Defendant, however, did not rest upon its demurrer to the complaint, but made answer thereto. If, therefore, the facts proved upon the trial of the case are sufficient as a basis for the plaintiff's claim for special damages, then it will be held that the complaint was considered amended to conform to the facts so proved, thus making its allegations sufficient.

It is conceded that the findings of fact made by the court are well sustained by the evidence adduced upon the trial of the case. From these it appears that the plaintiff was engaged at Hot Springs in performing a contract under the terms of which he was required to install a certain kind of lavatories, and was liable for liquidated damages for failure to complete his contract within a specified time. These lavatories could only be obtained in Trenton, N. J., and prior to October 10, 1910, he made an order for them and directed their immediate shipment. The goods were promptly shipped on October 10th, and were transported with reasonable dispatch, amongst others, over the defendant's line of railroad as the final carrier to Hot Springs, where they arrived on October 19, 1910. About that time the plaintiff inquired for these goods of the defendant's agent at its depot in Hot Springs, and was informed that they had not arrived. On October 22, 1910, he received from the defendant at its depot at Hot Springs other goods consigned to him at the same time that the shipment of the lavatories was made, and he again made inquiry of said agent for said lavatories. On that day he notified the defendant's agent at Hot Springs of the peculiar circumstances which would cause him special damages by reason of the delay in delivering the lavatories. These consisted in the fact that the lavatories could not be obtained from any other place, that he was by the contract under obligation to complete the installation of them by a specified time, and that he was compelled on that account to retain a force of skilled workmen awaiting the delivery of the lavatories. At the time of giving such notice, he also told the agent that he would hold the defendant liable for all damages he might sustain by its failure or delay to deliver these goods.

Thereafter from day to day the plaintiff made inquiry of the defendant's agent for these lavatories, and asked for their delivery. Finally, in the latter part of October, he requested defendant's agent to permit him to search through the depot for these goods, and he was told by the agent "to go to hell; that he was running that part of it." On November 29, 1910, plaintiff received notice that the goods were in the depot and would be delivered to him, and such delivery was then made.

The court further found that the defendant's depot agent at Hot Springs received the goods upon their arrival at that place on October 19, 1910, and from that time until the actual delivery was made to plaintiff on November 29th these goods were in the actual possession of defendant at Hot Springs and under its control. During that time the plaintiff incurred said damages in the amount of $206 by reason of the failure to receive and obtain said goods.

The defendant does not contend that the plaintiff did not incur and pay these special damages, or that they did not arise from the special circumstances requiring a prompt delivery of the goods; nor does it contend that the delay in making the delivery was not due to the negligence of its agent after the arrival of the goods at Hot Springs on October 19, 1910. The sole contention made by counsel for the defendant why the plaintiff is not entitled to recover the amount of the damages adjudged against it is that they are special damages, and that notice of the circumstances out of which such damages might or did arise was not given to the appellant prior to or at the time of making the contract of shipment.

The general rule for the allowance and measurement of damages growing out of the breach of a contract is that they must be such as the parties may fairly be supposed to have contemplated when they made the contract. If there are special circumstances existing by reason of which special or peculiar damages may be incurred on account of the breach of the contract, it is...