St. Louis, I. M. & S. Ry. Co. v. Mudford

• Decision Date: 19 March 1887
• Citation: 3 S.W. 814
• Parties: ST. LOUIS, I. M. & S. RY. CO. <I>v.</I> MUDFORD.
• Court: Arkansas Supreme Court

3 S.W. 814

ST. LOUIS, I. M. & S. RY. CO.v.

MUDFORD.

Supreme Court of Arkansas.

March 19, 1887.

Appeal from circuit court, Nevada county.

Dodge & Johnson, for appellant. Scott & Jones and J. D. Cook, for appellee.

BATTLE, J.

Plaintiff alleged in his complaint that he, on the eighth of February, 1881, shipped over defendant's road, from Texarkana, Arkansas, one box containing 47 gin-sharpening machines, consigned to Goble Bros., Cincinnati, Ohio; "that, at the time of shipment, plaintiff and his agents at various places had contracted and taken sundry orders for the machines greater than the number shipped, and that said machines had been contracted and bargained away for $25 each; that the machines shipped were the only ones plaintiff had for the purpose of filling these orders; that, owing to some slight defect, they had been shipped to Cincinnati to be repaired, and then immediately returned; that it should only have required fourteen days to carry, repair, and return said machines, so that plaintiff could have filled his orders; that defendant had knowledge of all said facts, and, knowing the same, carelessly and negligently delayed the carrying and delivering of said machines thus causing plaintiff to lose the sale of said machines, to his damage in the sum of $1,000." The defendant answered, and admitted the receipt and shipment of the machines on February 8, 1881; "that it received the same for transportation to Cairo, there to be delivered to a connecting carrier, to be forwarded to Goble Bros. & Co., at Cincinnati, Ohio." "It admitted the delay in the delivery of said goods to the consignees at Cincinnati, but denied all negligence or fault on its part in causing said delay. It denied the price of said machines; denied that plaintiff had made any such contracts as alleged, or that plaintiff had lost the sale of said machines by or through any fault on its part." It specifically denied that plaintiff had contracted to sell machines as he alleged in his complaint, or that it had notice or knowledge of such contracts; and averred that all the knowledge it had, or contract of shipment that had been made, was contained in the bill of lading. "The answer further charged that the goods were delivered to its connecting carrier at Cairo in due time; were then carried to Cincinnati, and there tendered to consignees, who were ordered by plaintiff not to receive the goods, and in consequence the goods were left in the hands of the carrier."

Evidence was introduced at the trial tending to prove that the machines were delivered and shipped on the eighth of February, 1881, and reached Cincinnati, Ohio, their place of destination, on the sixteenth of May, 1881; and that plaintiff, at the time of the shipment, had contracted to sell and deliver to persons residing in the states of Arkansas, Louisiana, and Texas a large number of machines of the kind and class he had shipped; that he had contracted to sell more than he had shipped; that the machines shipped were all he had; and that he failed to perform his contracts, and lost the sale of his machines, by reason of the failure to deliver the machines at Cincinnati in due time. But there was no evidence that defendant had notice, information, or knowledge of these contracts, or of plaintiff's ability or inability to perform them. The court, at the request of plaintiff, gave to the jury three instructions over the defendant's objections; and gave two, at the request of defendant, and refused one; and gave one, on its own motion, over defendant's objections.

One of the instructions given at the instance of plaintiff over the objections of defendant, reads as follows: "If the jury find that there was any depreciation in the market of said machines, arising from the time of the year or season in which said machines should by the defendant have been delivered to the connecting line, and the time or season at which they were so actually delivered, such depreciation, together with the value of time lost by plaintiff, if any such has been proven, in necessarily looking after said lost property, is the measure of damages; and, if the jury in this case find for the plaintiff, the measure of their verdict will be as above stated."

The one asked by defendant, and refused by the court, is as follows: "The court instructs the jury that in case of a delay in the transportation of machines beyond the time stipulated, or, if there is no stipulation, beyond a reasonable time, for the transportation and delivery of same, the damages would be the direct and actual loss sustained thereby,—such as the decline in the value of the property at the...