transit, by such failure, the owner is entitled to recover its value at the place of destination named in the contract; and the carrier is entitled to have the freight deducted from the value, not because he has earned it, but on the ground that the stipulated freight represents the cost of placing the goods in that market; so that the value of the property in that market, deducting the freight, will exactly indemnify the owner-the value to be ascertained according to the market rates, giving to the owner what he might have received for the property on a sale or other disposition of it."

The same rule applies where a railroad contracts to carry and deliver goods to a point beyond the termination of its line. There being no such contract, the damages are to be assessed at the market price at the terminus of the road.3

§ 674. When the carrier without any legal excuse delivers the goods in a damaged condition, the owner recovers as damages the difference between the value of the goods delivered in proper order or in the condition in which the carrier received and undertook to deliver them, and their value in their damaged condition as delivered. The owner loses by the injury to the goods, the difference between what they are worth as delivered, and what they would have been worth, delivered in a good condition. And in estimating or measuring the damages, the rule is to ascertain the value of the goods in the condition in which they were delivered to the carrier, and the value of them in their damaged condition when received by the consignee; the difference between these amounts is the true measure of damages. The owner recovers that sum, which, added to the value of the injured article, is equal to that article in a sound condition.

§ 675. An element of policy appears in the earlier decisions, requiring the carrier to make good the loss of missing goods, or any damage accruing to the goods delivered, while in his hands. The rule as applied to the ship-carrier, is deemed salutary, because in furtherance of the

I Sturgess v. Bissell, 46 N. Y., 462; Spring v. Haskell, 4 Allen, 112; Laurent v. Vaughan, 30 Vt., 90; 37 Barb., 122; Rice v. Ontario Steamboat Co., 56 Barb., 584; Bridgman v. Steamboat Emily, 18 Iowa, 509.

2 Smith v. Griffiths, 3 Hill, 333; case of the mulberry trees; Cushing v. Wells, Fargo & Co., 93 Mass., —; United States Coin ; 46 N. Y., 291.

3 Perkins v. Portland, S. & P. R. R. Co., 47 Maine, 573; Marshall v. N. Y. Central R. Co., 45 Barb., 502. The value at the place of loss has been allowed; Harris v. Panama R. Co., 3 Bosw., 7; S. C., 5 Bosw., 312; 3 Story, 349.

4 Henderson v. Ship Maid of Orleans, 12 La. Ann., 352; Black v. Camden & Amboy R. & Transp. Co., 45 Barb., 40.

McHenry v. Railroad Co., 4 Harring. R., 448.

general policy of the marine law, which holds the master responsible as a common carrier, for accidents, and all causes of loss, not coming within the exception in the bill of lading; and because it takes away all temptation to withhold a delivery of the goods, and exempts the shipper from the hard task of undertaking to detect, in every case, the negligence, fault or fraud of the carrier; and it must be admitted that the rule is highly just and necessary when a loss is imputable to either of these causes.'

It is of course wise to adopt a rule of damages with some view to its effect upon the conduct of the parties; and we find that this is actually done, with reference to different classes of contracts; instance, contracts for personal services, and charter-parties where the charterer fails to lade a vessel pursuant to the contract.2 The law for wise reasons, also imposes upon the party subjected to injury from a breach of contract the active duty of making reasonable exertions to render the injury as light as possible. Public interest and sound morality accord with the law in demanding this; and when the injured party, through negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss justly falls upon him.3

§ 676. On a breach of an executory contract to carry and deliver a cargo of grain, the hirer is entitled to recover as his damages, the difference between the contract price and the market rate of freight, ruling at the time the ship should have sailed. Being able to find another conveyance, the owner's legal damages are limited to the increased expense of sending forward his goods. Being unable to find another conveyance, the hirer is entitled to recover the difference between the value of his goods at the port of shipment and their value at the port of destination, deducting freight; or the additional cost of the transportation, where he is able to send the goods by an unusual and more expensive conveyance."

6

1 Gillingham v. Dempsey, 12 Serg. and Rawle, 183; Brandt v. Bowlby, 2 Barn. & Adolph., 932; Warden v. Greer, 6 Watts, 424; O'Conner v. Foster, 10 Watts, 418.

2 Heckscher v. McCree, 24 Wend., 304; Shannon v. Comstock, 21 Wend., 457; Ashburner v. Balchen, 7 N. Y., 262.

3 Hamilton v. McPherson, 28 N. Y., 72; Spencer v. Halstead, 1 Denio, 606; Loker v. Mariners' Church, 7 Greenleaf, 51.

4 Ogden v. Marshall, 8 N. Y., 340.

5 Grund v. Pendergast, 58 Barb., 216.

Clark v. Marsiglia, 1 Denic, 317;
Dorman, 17 Pick., 284; Miller v.

6 Brackett v. McNair, 14 John. R., 170; 15 John. R., 24; 3 Caines' R., 219; 8 John. R., 213; 6 Cowen, 266; O'Conner v. Foster, 10 Watts, 418; McGovern

v. Lewis, 56 Penn. St., 231; Fox v. Hayward, 4 Brewster, 32.

7 Cooper v. Young, 22 Geo., 269.

When the goods are lost by accident at or near the port of lading, without any actual negligence on the part of the carrier, the owner recovers the value of the goods at that port; on the ground, that this value will ordinarily indemnify him against loss, enabling him to replace the goods and send them forward by another vessel.' The carrier's negligence or fraud, or fair dealing, bears on the measure of damages; and yet the test question appears to be this, whether the market price at home or the price at the port of destination, will under the circumstances furnish a true and perfect indemnity.

§ 677. When the owner brings an action of trover against a common carrier, he recovers the value of the property with interest thereon from the time of the conversion, or from a reasonable time thereafter. This appears to be the general rule, where no circumstances of bad faith or willful misconduct accompany the act; and the rule is the more reasonable because an act of conversion does not affect the title to the property.*

We have seen that the carrier is also liable for the damages caused by his delay in transporting and delivering the goods pursuant to his contract; and that the general rule is to allow the owner to recover such damages as will indemnify him against the direct and natural consequences of the carrier's inexcusable delay.

XI. CARRIAGE OF LIVE STOCK.

§ 678. Since the introduction of railways, the transportation of horses, cattle and other live stock, has grown up into an important branch of business. The English railways were not at first obliged to assume the character and liabilities of common carriers; and independent of any statute they can hardly be charged with the common law liability of common carriers of live stock, where they have not assumed the character by their mode of transacting the business. Assuming to

Wheelwright v. Beers, 2 Hall, S. C. R., 391; Lakeman v. Grinnell, 5 Bosw., 625; Dresar v. Murgatroyd, 1 Wash. C. R. R., 13; Bridge v. Austin, 4 Mass., 115.

* Lakeman v. Grinnell, supra, and cases there cited.

* Ante § 112; §§ 270, 406, 407; Whelan v. Lynch, 60 N. Y., 469; Andrews v. Durant, 18 N. Y., 496.

* Ball v. Liney, 48 N. Y., 6.

Ante 608-611; Wilson v. Lancashire & Yorkshire R. Co., 9 Com. B. (N. S.), 632; Collard v. South Eastern R. Co., 7 H. & N., 79.

6 McManus v. Lancashire & Yorkshire R. Co., 2 H. & N., 693; 4 Jur. N. S., 144; 27 L. J. Exch., 201; 4 H. & N., 343; Kimball v. Rutlaud Co., 26 Vt., 247; Michigan S. R. Co. v. McDonough, 21 Mich., 189.

carry all kinds of freight, including live stock, indiscriminately for all persons, they are thus chargeable; with certain qualifications arising out of the peculiar nature of the property. Having the right to assume the character or not, at pleasure, it is under the common law within their power to limit their business to the transportation of a specific kind of goods, or so as to exclude a specific kind."

The statute of England, already noticed, makes it the duty of railway and canal companies to afford all reasonable facilities for receiving, forwarding and delivering traffic upon their several lines of transportation, including goods, animals and other articles.3 It also renders the company liable for the loss of, or for any injury done to any horses, cattle or other animals, or to any articles, goods or things, in the receiving, forwarding or delivering thereof, occasioned by the neglect or default of such company or its servants; permitting the company to prescribe just and reasonable terms or conditions; and fixing the damages to be paid at so much per head, on a loss of such animals, unless valued on delivery to the company at a higher sum; and further providing that special contracts for such transportation must be made in writing.

In this State railroad corporations are, by an act of the Legislature, made common carriers, with such variations as the nature of the business requires. They are required to receive and carry all kinds of property; receiving and discharging the same, at fixed times and places, duly advertised beforehand. Being thus made common carriers, railroads have no right to prescribe the conditions on which alone they will receive goods for transportation; but where they actually receive them under a special agreement for carriage, their liabilities will, with few exceptions, be regulated by the terms used.

§ 679. Excluding causes of loss or injury arising from the proper vice or peculiarities of live stock, we find railway and transportation companies treated as common carriers of this species of property, and held liable as such for injury or loss arising from other causes not coming within the exceptions to the general rule. Receiving live stock to carry under the contract implied by law, or without any special stipulations, they are common carriers, with such qualifications of their

1 Parker v. Great Western R., 7 Man. & G., 253; Muschamp v. Lancaster R., 8 Mees. & Welsb., 421; Palmer v. Grand Junction R. Co., 4 M. & W., 749; 12 M. & W., 766; Weed v. S. & S. R. Co., 19 Wend., 534; ante § 515; Penn v. Buffalo & Erie R. R., 49 N. Y., 204.

2 Sewell v.

Allen, 6 Wend., 335; Blanchard v. Isaacs, 3 Barb., 388. 3 Railway and Canal Traffic Act 1854, 17 and 18 Vict., c. 31, § 2. 4 Statute of 1850, and 12 N. Y., 245.

liability as the law itself supplies. They are bound to take suitable care of the property, considering its nature, on the way and at the place of destination. They are bound to furnish secure and safe and proper cars or conveyances, and run them with diligence and regularity, halting at convenient times and places, so as to permit the cattle to be properly watered and fed and cared for.3 The duty of a railway company to furnish sound and sufficient cars, properly constructed, is strictly enforced; the company cannot escape this obligation by calling attention to the defective condition of the cars, at the time the cattle are received on board; they can only escape liability for losses arising therefrom by proof of a distinct agreement by the owner to assume the risk arising from that cause. And it has been held that they cannot make a valid contract, exempting themselves from liability for damages resulting from defective and unsafe cars supplied by them.5

§ 680. There is some tendency in the decisions to relieve our railroad companies of their liability as common carriers, in the transportation of live stock. And it is quite clear that the law does not hold them liable for the safe transportation of horses and cattle under the same strict rule which applies to goods and merchandise, inanimate property. The business is of recent origin; and the carrier has not the same control over animals as he may have over inanimate matter. He can store away goods so as to secure their safety. But a carrier of animals, by a mode of conveyance opposed to their habits and instincts, has no such means of securing absolute safety. They may die of fright, or by refusing to eat, or they may, notwithstanding every precaution, destroy

1 Palmer v. Grand Junction Co., 4 M. & W., 758; Kimball v. Rutland Co., 26 Vt., 247; Merritt v. Earle, 29 N. Y., 115; assumed in Railroad Co. v. Pratt, 22 Wall., 123; Wyld v. Pickford, 8 M. & W., 443; Kansas Pacific R. Co. v. Nichols, 9 Kansas, 235.

2 Great Northern R. Co. v. Swaffield, 8 English (Moak), 567, citing Notara v. Henderson, 1 English (Moak), 269.

3 Squire v. N. Y. Central R., 98 Mass., 239; 11l. Central R. R. Co. v. Adams, 42 Ill., 474; Gregory v. West. M. R. Co., 2 H. & C., 944.

4 Pratt v. Ogdensburgh & Lake Champlain R. Co., 102 Mass., 557; Railroad Co. v. Pratt, 22 Wallace, 123; 14 N. Y., 570 ; 111 Mass., 142; Harris v. Northern Ind. R. Co., 20 N. Y., 232; Combe v. London & South Western R. Co. 31 L. T. N. S., 613; St. Louis & S. R. Co. v. Dorman, 72 Ill., 504.

Welsh v. Pittsburgh, Ft. W. & C. R. R. Co., 10 Ohio St., 65.

6 Michigan So. & Northern Ind. R. Co. v. McDonough, 21 Mich., 165; Lake Shore & M. So. R. Co. v. Perkins, 25 Mich., 329; S. C., 12 Amer. R., 275; McManus v. Lancashire R. Co., 2 Hurl. & Norman, 702; S. C., 4 Hurl. & Norman, 346; Carr v. Lancashire & Y. R. Co., 7 Exch., 712, 713.

7 See Boyce v. Anderson, 2 Peters, 150, where a like exception was made in favor of a carrier of slaves that leaped from a steamboat in a panic.