Levy v. Nevada-California-Oregon Ry.

• Decision Date: 14 November 1916
• Citation: 81 Or. 673,160 P. 808
• Parties: LEVY v. NEVADA-CALIFORNIA-OREGON RY.
• Court: Oregon Supreme Court

160 P. 808

81 Or. 673

LEVY v. NEVADA-CALIFORNIA-OREGON RY.

Supreme Court of Oregon

November 14, 1916

Department 1.

Appeal from Circuit Court, Lake County; Bernard Daly, Judge.

Action by Henry Levy against the Nevada-California-Oregon Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

The amended complaint contains four separate causes of action the gravamen of each of which is that the plaintiff in one instance and his assignors in the others contracted with the defendant for the latter to furnish cars at a station on its railroad in which to ship live stock to the San Francisco market; but that in violation of the agreement the defendant failed to supply the cars until a later date, in consequence of which delay the stock to be transported depreciated in weight and quality to the damage of the shipper. The defense against each count of the amended complaint consists in general denials, and the affirmative charge, in substance that if the animals declined in condition, it was on account of the negligence of the person in charge failing to give them sufficient food and proper care while in the stockyards of the defendant awaiting shipment. The new matter of the answer is denied by the reply. The jury rendered a verdict favorable to the plaintiff, and from the consequent judgment the defendant appeals.

James Glynn, of Reno, Nev. (L. F. Conn, of Lakeview, on the brief) for appellant. W. Lair Thompson, of Lakeview (Arthur D. Hay of Lakeview, on the brief), for respondent.

BURNETT J. (after stating the facts as above).

Several assignments of error are predicated upon the fact that the court allowed testimony to the effect that the agreement with the defendant was made in each instance by an agent of the plaintiff who did not disclose his principal, the contention being that under the averment that the plaintiff entered into the contract it is not admissible to show that the compact was really made between the defendant and an agent of the plaintiff. The defendant's argument is that, in order for the undisclosed principal to recover on such a stipulation, it would be necessary to aver that the contract was made through an agent. This court has held to the contrary in Kitchen v. Holmes, 42 Or. 252, 70 P. 830, and Smith Meat Co. v. O. R. & N. Co., 59 Or. 206, 117 P. 303. In other words, if the plaintiff alleges that he himself made the contract, it is permissible to prove that he did this by an agent. Cases like Baker v. Eglin, 11 Or. 333, 8 P. 280, to the effect that where A. makes a contract with B. for the benefit of C. the latter may bring an action upon it, are not applicable in this instance. There the real party in interest was avowedly C., and he was entitled to litigate in his own name. In the present juncture if in fact the agreement was made by the agent acting for his principal, the latter is the real party in interest, and the proper one to conduct the litigation.

Another class of errors assigned relates to the measure of damages. The defendant contends that it is the difference between the value of the stock at the point of shipment when offered for transportation and the reasonable worth of the same when the cars were actually furnished at the same place, while the plaintiff urges that it is the difference between what would have been the market value at the place of destination and the real worth of the stock at the time they arrived there. In brief, the defendant contends that the damages should be measured by conditions at the point of shipment, while the plaintiff maintains that they should be governed by the circumstances at the place of destination.

We note that the only cause of complaint is the delay in furnishing the cars where the stock was to be loaded as the parties had previously agreed upon. No charge is made that the animals were neglected or ill treated en route to San Francisco. We observe, also, that it is alleged, and the evidence tended to show, that the cars were ordered for the transportation of the stock to the San Francisco market. The general rule is that damages may be predicated with reference to all that was in the reasonable contemplation of the parties in the performance of the agreement. It may be conceded that if the defendant had no knowledge or notice of the purpose for which the cars were to be used, or the place to which the animals were to be forwarded, or of the purpose for which they were to be sent there, the damages ought to be computed by the rule which the defendant suggests.

But here it is alleged and the evidence shows that it was within the contemplation of both parties that the cars were to be used to transport the stock to the San Francisco market; that is to say, they were to be taken there for sale. What injury, then, naturally flows from the neglect of the defendant to carry out its agreement? The delay, where the shipment originated caused a depreciation in the marketable condition of the animals, had its effect on their condition at their destination, and rendered them less valuable there. As stated in Chattanooga So. Ry. Co. v. Thompson, 133 Ga. 127, 131, 65 S.E. 285, 287, cited by the defendant:

"Ordinarily, in a suit by a shipper against a carrier, in case of injury to or loss of the property by the carrier's fault, the carrier is required to make compensation on the basis of the value at the place of destination."

In that case the court refused to apply that rule because in the agreement to furnish the cars there was no stipulation about any destination for the goods to be shipped in them. The court there properly decided that the damages should be computed as at the place of shipment, because there was no destination or particular market within the contemplation of the parties. In St. Louis S.W. Ry. Co. v. Musick, 35 Tex.Civ.App. 591, 80 S.W. 673, noted in the defendant's brief, the trial court charged the jury thus:

"If you find for plaintiff, the measure of damages will be the difference, if any, between the market value of the cattle when they should have arrived at their destination and when they did arrive, and also such damages, if any, as said cattle may have sustained by the unreasonable and negligent delay on the part of defendant in furnishing cars and shipping said cattle after said cattle had been received by defendant for shipment."

The Court of Civil Appeals of Texas held this erroneous because it authorized double damages. In...