Choctaw, Okla. & Gulf R.R. Co. v. Jacobs

• Decision Date: 05 September 1905
• Citation: 82 P. 502,1905 OK 43,15 Okla. 493
• Parties: CHOCTAW, OKLAHOMA AND GULF RAILROAD COMPANY v. E. A. JACOBS.
• Court: Oklahoma Supreme Court

1905 OK 43

82 P. 502

15 Okla. 493

CHOCTAW, OKLAHOMA AND GULF RAILROAD COMPANY v. E. A. JACOBS.

Supreme Court of Oklahoma

Decided: September 5, 1905

Syllabus

¶0 1. CONTRACT--Anticipatory Damages. As a general rule, subject to well established qualifications, anticipated profits, prevented by the breach of contract, are not recoverable as damages for such breach.

2. SAME. Where the plaintiff in an action against a railroad company seeks to recover damages for delay in delivering freight, to entitle the plaintiff to recover, the damages sought must be such as may fairly and substantially be considered as arising naturally in the usual course of things, from the breach itself, or such as may reasonably be supposed to have been in contemplation of the parties at the time they made the contract. And if special circumstances under which the contract was actually made were communicated and made known to the railroad company, the damages resulting from the breach of such a contract would be the amount of injury which would ordinarily follow from a breach of contract under such special circumstances so communicated and known.

Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge.

C. B. Stuart and R. E. Campbell for plaintiff in error.

Shartel Keaton and Wells, for defendant in error.

BEAUCHAMP, J.

¶1 This action was commenced by the defendant in error against the plaintiff in error in the probate court of Oklahoma county, resulting in a judgment in that court in the sum of one thousand dollars ($ 1000.00) against plaintiff in error. An appeal was taken to the district court, trial had in that court, resulting in a judgment against plaintiff in error in the sum of three hundred fifty dollars ($ 350.00) and costs. Plaintiff in error brings the case here by petition in error and case made for review.

¶2 At the trial and upon the offer of the first witness by defendant in error (plaintiff below) plaintiff in error (defendant below) objected to the introduction of any evidence on the part of defendant in error "for the reason that the damages claimed consist of claims for future sales of goods, which does not constitute a proper element of damage", which objection was by the court overruled, and exceptions saved, and this is the first error complained of by plaintiff in error.

¶3 The petition, so far as necessary for an understanding of the question raised, alleges:

"1. That the defendant is and at all of the times herein mentioned was a corporation organized and existing under and by virtue of the laws of the Territory of Oklahoma, and a common carrier of goods, wares and merchandise.

"2. That the plaintiff is, and for more than two years last past, has been employed as travelling salesman for the firm of Keiffer Brothers, wholesale dealers in boots and shoes, of New Orleans in the state of Louisiana.

"3. That in the conduct of plaintiff's said business as traveling salesman the use of four cases of sample boots and shoes was absolutely essential, and prior to November, 1898, had been used by him in the conduct of said business and during the season for supplying the spring trade of 1899, to-wit, December 1898, and January 1899, the plaintiff's said business could not in any wise be conducted without said samples.

"4. That prior to November, 1898, said samples had been returned to said Keiffer Brothers at said New Orleans for necessary changes, and on November 5, 1898, said Keiffer Brothers shipped said samples to the plaintiff at Shawnee, in said Territory, where they arrived in the regular course of transportation, and on or about November 15, 1898, remained in the possession of the defendant at said Shawnee.

"5. That on or about November 15, 1898, the plaintiff applied to the defendant at said Shawnee to have said samples reshipped to said Keiffer Brothers at said New Orleans for the purpose of having further necessary changes made therein, and at the same time informed the defendant that said samples were essential to the conduct of his said business, and that he could do nothing in his said business without said samples during the season for supplying the spring trade of 1899, to-wit, December 1898, and January, 1899; and the defendant then and there verbally agreed and contracted with plaintiff, in consideration of the freight charges, to carry said four cases of samples to New Orleans and deliver same to the said Keiffer Brothers within a reasonable time thereafter, and then and there took up the bill of lading which plaintiff had received from said Keiffer Brothers for said goods.

"6. That a reasonable time for the transportation of said samples from said Shawnee to said New Orleans in and during November 1898, was a period of not to exceed one week from and after the time of such contract for reshipment, and that by the exercise of reasonable diligence the defendant should have transported said goods to said New Orleans and delivered the same to said Keiffer Brothers on or about November 22, 1899.

"7. That owing to the negligence of the defendant said samples were lost by the defendant in the course of transportation from said Shawnee to said New Orleans, and that for a long and unreasonable period, to-wit, nearly two months, the defendant made no diligent effort to ascertain the whereabouts thereof; and owing to the negligence of the defend-and in losing said samples and in not sooner ascertaining the whereabouts of the same, said samples did not arrive at said New Orleans nor were they delivered to said Keiffer Brothers until on or about January 17, 1899.

"8. That when said samples were received by said Keiffer Brothers at said New Orleans it was too late to make the said changes and reship said samples to plaintiff in time to be used by him in any wise in his said business during the season for supplying the spring 1899 trade as hereinafter stated; that on the other hand, if said samples had been received by said Keiffer Brothers within a reasonable time as hereinafter stated, said changes could have been made and said samples reshipped to the plaintiff in time to be used by him in his said business during the season for supplying the spring 1899 trade as hereinafter stated.

"9. That owing to the negligence of the defendant as aforesaid that plaintiff was prevented from conducting his said business of traveling salesman for a period of two months to-wit, during December 1898 and January 1899; that said period was the season for supplying the spring trade of 1899, and plaintiff was wholly unable to supply said spring trade by reason of not having said samples during said period; and plaintiff was unable to procure other samples in time to conduct his said business and supply said spring trade or any part thereof; and plaintiff was unable, under the circumstances aforesaid, to secure any other employment during said time whatsoever, but while daily expecting to be notified by the defendant that his said samples had been found, plaintiff remained idle during the whole of said period.

"10. That by reason of the foregoing, plaintiff had lost the commissions which he would have received but for the negligence aforesaid, of the defendant in the sum of at least eight hundred dollars ($ 800.00) and the good will of plaintiff's said business has been injured by the negligence aforesaid of the defendant in the sum of at least two hundred dollars ($ 200.00)"

¶4 As will be seen by the petition, defendant in error seeks to recover damages because of alleged loss of commissions which he claims that he would have earned by the sale of goods but for the unreasonable delay in the transportation and delivery at their proper destination of the samples shipped, and for loss of good will of his business by reason of such delay. By sections 2746 W. S. 1903, it is provided that:

"The detriment caused by a carrier's delay in the delivery of freight is deemed to be the depreciation in the intrinsic value of the freight during the delay and also the depreciation, if any, in the market value thereof otherwise than by reason of a depreciation in its intrinsic value at the place where it ought to have been delivered and between the day at which it ought to have been delivered and the day of its actual delivery."

¶5 So that there being no claim for loss in either the market of intrinsic value of the goods shipped, there can be no recovery under the allegations of the petition unless the knowledge imparted to the railroad company by defendant in error was sufficient to put it upon notice that the loss of commissions and loss of good will would be the direct and immediate result of delay in the delivery of the goods shipped, for under the provisions of the statute and in the absence of a special contract to that effect, or the existence of such circumstances and knowledge as would charge the railroad company with notice that the alleged loss would be the direct and immediate result of failure to promptly deliver the goods, the only damages that could reasonably be contemplated is that disclosed by the statute, for the legislature has clearly defined what shall be deemed to be the damages for the delay in delivery of freight by common carriers in ordinary cases. It is not alleged in the petition that the railroad company contracted in specific terms that in the event of delay in the delivery of the goods that it would pay for the loss of commissions and of good will, so that the only question for our determination is, was the railroad company apprised of such facts as would put it upon notice that if it delayed the delivery of the goods shipped that Jacobs would sustain the loss complained of? Or was the contract under which the goods were shipped sufficient from its nature and terms to imply that the railroad company in case of default upon its part would pay the loss of commissions?

¶6 In the case of Howard v. Stillwell & Bierce Mfg. Co. 139 U.S. 199, 35 L. Ed. 147, 11 S. Ct. 500, being a case...