Va.-carolina Peanut Co v. Atl. Coast Line R. R

• Decision Date: 03 May 1911
• Citation: 71 S.E. 71,155 N.C. 148
• Court: North Carolina Supreme Court
• Parties: VIRGINIA-CAROLINA PEANUT CO. v. ATLANTIC COAST LINE R. R.

71 S.E. 71

155 N.C. 148

VIRGINIA-CAROLINA PEANUT CO.

v.ATLANTIC COAST LINE R. R.

Supreme Court of North Carolina.

May 3, 1911.

Carriers (§ 105^*)—Principal and Agent (§ 143*)—Negligent Delay in Transportation of Freight — Special Damages — Liability.

Where a carrier contracted with an agent of an undisclosed principal for the transportation of machinery, without being informed of any special circumstance requiring prompt delivery, but was subsequently notified thereof, and negligently delayed the transportation, it was liable for special damages so arising after it had a reasonable opportunity to avoid further delay after such notice, and the undisclosed principal suing for the negligent delay could prove the special circumstances of which the carrier received notice.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 452%; Dec. Dig. § 105;* Principal and Agent, Dec. Dig. § 143.*]

Appeal from Superior Court, Martin County; Peebles, Judge.

Action by the Virginia-Carolina Peanut Company against the Atlantic Coast Line Railroad. From a judgment awarding nominal damages, plaintiff appeals. Reversed and remanded.

The action was to recover damages for negligent delay on the part of defendant company in conveying a lot of machinery shipped over defendant's road. On the trial it appeared: That plaintiff was a corporation, doing a general business in manufacturing and cleaning of peanuts, at Williamston, N. C, and that in the latter part of August, 1907, Eli Gurganus, acting for said company, but without having informed the company of this fact, so far as the eviuence shows, ordered from the Appomattox Iron Works at Petersburg, Va., a car load of machinery for equipment of plaintiff's mill at Williamston, N. C, and had same shipped over defendant's road, taking a bill of lading therefor in his own name. That the machinery, consisting of peanut shellers, drums, shakers, and shafting, etc., and described, in detail, in the testimony, was mostly of a heavy order, weighing something like 8, 000 pounds, and was shipped in an open car. That the distance between the two points by rail was about 140 miles, the time about two or three days, and there was negligent delay in the carriage, the machinery having been shipped August 29th, and not arriving at Williamston until September 16th. It appeared, further, that the Appomattox Iron Works were manufacturers of machinery for this purpose at Petersburg, Va. That the defendant road extends through eastern North Carolina and Virginia, and large quantities of peanuts are annually shipped from this place, Williamston, over defendant's road; that from the time the machinery should have arrived plaintiff had a house rented in which to place it for the purpose of manufacturing and a lot of hands, two of them experts, awaiting to install and operate the same, and these hands were drawing wages and necessarily kept idle for the time of the delay, and that the capital invested in the machinery was about $2,000. On the question of notice, plaintiff offered the following evidence by the witness Gurganus: "On the 1st day of September, 1907, I went to the agent of the Coast Line at Williamston, and notified him of the car load of peanut machinery being shipped from Petersburg, Va., and told him that the company had men hired to install this machinery, and told him that the men were on the ground ready for work, and that the peanut company would hold the Coast Line for damage for all delay. I continued to go to the agent each day till the 19th, when machinery came and repeated the same thing." On objection by defendant, this evidence was excluded and plaintiff excepted. Plaintiff then offered the following evidence by J. G. Staton, president of plaintiff company: "On the 1st of September, 1907, I went to the agent of the defendant company at Williamston, N. C., and notified him that this car load of machinery had been shipped, told him that plaintiff company had men hired to install this machinery, and that company would hold defendant liable for any further delay. I told him that the men were on the ground ready for work, and that the plant was idle. I went to see agent every day from the first to the 15th of September about it, and repeated the same thing to him. I helped agent wire for machinery on the 15th of September, and we located it in Wilmington, N. C." This was likewise excluded, and plaintiff excepted. The court charged the jury that "in no event could they, on the evidence, allow any more than nominal dam-ages." Plaintiff excepted. Verdict awarding nominal damages. Judgment, and plaintiff excepted and appealed.

Martin & Critcher and Winston & Matthews, for appellant.

P. S. Spruill and Harry W. Stubbs, for appellee.

HOKE, J. (after stating the facts as above). In Harper v. Express Co., 148 N. C. 87-90, 62 S. E. 145, 146, 128 Am. St. Rep. 588, the court in speaking to the question of damages recoverable by reason of wrongful delay in shipment of goods said: "Where the goods shipped have a market value, and there is nothing to indicate the specific purpose for which they were ordered, these damages are usually the difference in the market value of the goods at the time for delivery and that when they were in fact delivered. We have so held in the case of Davidson Development Co. v. Railroad, 147 N. C. 503, 61 S. E. 381; and Lee v. Railroad, 136 N. C. 533, 48 S. E. 809, is to the same effect. When, however, the goods are ordered for a special purpose or for present use in a given way, and these facts are known to the carrier, he is responsible for the damages fairly attributable to the delay and in reference to the purpose or the use Indicated. And it is not necessary always that those facts should be mentioned in the negotiations, or in express terms made a part of the contract, but when they are known to the carrier under such circumstances, or they are of such a character that the parties may be fairly supposed to have them in contemplation in making the contract, such special facts become relevant in determining the question of damages"—citing Moore on Carriers, p. 425, and Hutchinson on Carriers, § 1367. The modification of the general rule suggested in this excerpt is not infrequently called for in shipments of machinery, and under several decisions of our court on this subject it may be that the facts now in evidence require that the question of substantial compensatory damages arising by reason of notice or knowledge of special circumstances had at the time of shipment should be submitted to the jury. Lumber Co. v. Railroad, 151 N. C. 23, 65 S. E. 460; Sharpe v. Railroad, 130 N. C. 613, 41 S. E. 799; Rocky Mount Mills v. Railroad, 119 N. C. 693, 25 S. E. 854, 56 Am. St. Rep. 682. Without final determination of this matter, however, we are of opinion that there was error in excluding the testimony offered by plaintiff to show definite notice of special circumstances given after shipment made. True, the bill of lading was issued to the witness Gurganus, but it is also true that he had no personal interest in the goods or their shipment, but was acting at the time for the plaintiff company, "which had purchased the machinery, paid for it, received it upon arrival at Williamston, and there paid the freight charges thereon, and in stalled same in its plant." From these facts we see no reason why the plaintiff company, as undisclosed principal, did not acquire and hold the general business rights and interests arising from the contract and under the general principles obtaining in case of such a relationship. Nicholson v. Dover, 145 N. C. 20, 58 S. E. 444, 13 L. R. A. (N. S.) 167; Barham & Owens v. Bell, 112 N. C. 131, 16 S. E. 903; Clark & Skyles on Agency, p. 1155; Tiffany on Agency, pp. 304, 305. In case of Barham v. Bell, supra, it was held: "Where a contract, not under seal, is made with an agent in his own name for an undisclosed principal, either the agent or principal may sue upon it; the defendant, in the latter case, being entitled to be placed in the same position at the time of the disclosure of the real principal as if the agent had been the real contracting party." And in more general terms in Clark & Skyle, supra, it is said: "It is held, therefore, that where a person enters into a simple contract other than a negotiable instrument in his own name, but, in fact, as agent for an undisclosed principal, the principal may come in and sue the third party on the contract, and this is true, not only where the agent disclosed the existence, but not the name of the principal, but also where he does not even disclose the existence of the principal." A principle undoubtedly correct, where, as in this case, neither the personality of the agent nor the claims of the third party against him personally require consideration. This then being the position of the parties, if the nominal consignee and the president of the plaintiff company gave the notice embodied in the proposed evidence, and there was negligent delay on the part of the defendant after being afforded full and reasonable opportunity to correct the wrong, such negligence would constitute a tort, giving the plaintiff right to recover damages on facts as they then appeared. This is one principal difference in the elements of damages obtaining in breach of contract and consequential damages arising from a tort. In the one case damages are recovered as a rule on relevant facts in the reasonable contemplation of the parties at the time the contract is made, and in the other, on the facts existent or as they reasonably appeared to the parties at the time of the tort committed. The obligation of diligence imposed by the law on common carriers is continuous during the entire course of the carriage, and a negligent failure to perform such duty, causing special damage to a passenger or shipper of freight, is a tort arising whenever the same occurs. We must not be understood as holding that this consequential damage to arise by...