Weston v. Boston & M.R.r.

• Decision Date: 26 February 1906
• Citation: Weston v. Boston & M.R.r., 190 Mass. 298, 76 N.E. 1050 (Mass. 1906)
• Parties: WESTON v. BOSTON & M. R. R.
• Court: Supreme Judicial Court of Massachusetts

190 Mass. 298

76 N.E. 1050

WESTON v. BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Essex.

February 26, 1906

COUNSEL

Sanborn & Sanborn, for plaintiff.

Henry F. Hurlburt and Damon E. Hall, for defendant.

OPINION

LORING J.

This case presents in different forms but one question, namely: To what damages is the owner of a theatrical exhibit entitled in case of a negligent delay in the transportation of his scenery and other theatrical properties by a carrier who had full knowledge that they were to be used in an exhibition previously widely advertised at the place of destination, and that the owner was under an expense of $300 or $400 a week in that connection.The judge ruled that the plaintiff was limited to $4 'the actual money lost or expended in looking up the goods.'

The first ground on which the defendant has undertaken to support this ruling is that the shipping receipt, or the shipping receipt and the shipping order, constitute a written contract between the parties, by which, and by which alone, their rights are to be determined.No authorities have been cited for this contention, and we conceive that none can be found to support it.We assume, for the purposes of this decision, that this shipping receipt, or at any rate the shipping order and this receipt taken together, constitute a written contract.But it is always competent to show knowledge by the contracting parties to a written contract of the circumstances on the basis of which it is made, for the purpose of showing what was within the contemplation of the parties in making the contract.Knowledge of the circumstances which form the basis on which the contract is made is competent on the question as to what damages were in contemplation of the parties to it, whether a party seeks to recover ordinary or special damages.That has been laid down in all the cases on the subject.See, for example, Scott v. Boston & New Orleans Steamship Co.,106 Mass. 468;Harvey v. Connecticut & Passumpsic River Railroad,124 Mass. 421, 26 Am. Rep. 673;Mather v. American Express Co.,138 Mass. 55, 52 Am. Rep. 258;Lonergan v. Waldo,179 Mass. 135, 60 N.E. 479, 88 Am. St. Rep 365;Hadley v. Baxendale, 9 Ex. 341;Horne v Midland Railway, L. R. 7 C.P. 583(s. c., Ex. Ch. L. R. 8 C.P. 131);Simpson v. London & Northwestern Railway, 1 Q. B. D. 274;Grebert Borgnes v. Nugent,15 Q. B. D. 85.

The next ground on which the defendant has sought to support the ruling is on the authority of Waite v. Gilbert,10 Cush. 177;Harvey v. Connecticut & Passumpsic River Railroad,124 Mass. 421, 26 Am. Rep. 673;andSwift River Co. v. Fitchburg Railroad,169 Mass. 326, 47 N.E. 1015, 61 Am. St. Rep. 288.But the plaintiffs in those cases were confined to the damages to which the plaintiff was confined in the case at bar, for want of proof of notice, while in the case at bar proof of the necessary notice was plenary.Where a plaintiff is deprived of the use of property valuable for use, and the property is something that can be replaced, his damages are the expenses of hiring the property which he is forced to substitute for it.But, if the property is such that it cannot be replaced, the measure of damages is what such property is ordinarily worth for use.SeeFletcher v. Tayleur,17 C. B. 21, 28;Cory v. Thames Iron Works & Shipbuilding Co. L. R.3 Q. B. 181;Ex parte Cambrian Steam Packet Co., L. R.6 Eq. 396, 308(S. C. L. R.4 Ch. 112, 117).There are no cases in this commonwealth very near to the one under discussion.Perhaps the nearest are the cases in which it is held, in an action of trover, that where the property converted has no market value, but has a special value to the plaintiff, he can recover that value.Stickney v. Allen,10 Gray, 352;Green v. Boston & Lowell Railroad, 12, Mass. 221, 35 Am. Rep. 370;Mather v. American Express Co.,138 Mass. 55, 52 Am. Rep. 258.See, also, in this connection, Wall v. Platt,169 Mass. 406, 48 N.E. 270.

Where the article of the use of which the plaintiff has been wrongfully deprived cannot be replaced, and the plaintiff recovers for being deprived of the use of what such property ordinarily earns, he recovers profits in one sense of the word, but not in that sense of the word in which it is used when it is said that profits cannot be recovered because too remote.What is meant by that is that the plaintiff cannot recover for the loss of special profits, such as a particular bargain which he has lost.For a good statement of the distinction, seeMasterton v. Mayor of Brooklyn, 7 Hill (N. Y.) 62, 42 Am. Dec. 38.There are cases where contracts are made with reference to such special profits, and where such special profits can be recovered.Such profits were recovered in Grebert Borgnes v. Nugent,15 Q. B. D. 85; and it was such special profits that were unsuccessfully sought for in Waite v. Gilbert,10 Cush. 177;Harvey v. Connecticut & Passumpsic River Railroad,124 Mass. 421, 26 Am. Rep. 673;Swift River Co. v. Fitchburg Railroad,169 Mass. 326, 47 N.E. 1015, 61 Am. St. Rep. 288;Hadley v. Baxendale, 9 Ex. 341;andHorne v. Midland Railway, L. R.7 C. P. 583(s. c., L. R. 8 C.P. 131).The difference between those cases and the case at bar is this: Delay in the delivery of scenery and the other properties of a traveling theatrical company ordinarily means no performance by the company.But delay in the transportation of the broken shaft of a mill, for example, as in Hadley v. Baxendale, supra, does not ordinarily mean that the mill will stop.

We construe the statement of the plaintiff's counsel in the case at bar, 'that he claimed no loss of profits and no loss in the market value of the goods by reason of the delay in the delivery of the goods, but that he did claim loss in the rental value or the loss of the...