Edward T. Taylor & Co. v. Collier

[125] By the Court. Lumpkin, J. delivering the opinion. This action was brought by the plaintiffs, to recover of the defendant damages for failing to deliver four cotton gins in Lowndes county, to certain persons named in the declararation; and also for losing the opportunity of selling twenty-six others, by reason of the failure of the defendant to deliver the four in time, to gin the cotton crop of 1848. On the trial, the defendant moved to strike out so much of the declaration as sought to recover anything on account of the twenty-six gins, as mere speculative damages. The Court sustained the motion, and we think, properly. A plainer case of contingent or speculative damages, has not perhaps been brought before this Court. The testimony having closed, counsel for the plaintiffs requested the Court to charge the jury, that if they believed James Hill was employed by defendant, and had control of defendant’s wagon and team, and was driving the same for defendant, and took the gins upon the wagon at defendant’s plantation, and failed to deliver them at the place of destination, and they were thereby lost to the plaintiffs, the defendant was bound by the acts of his driver, as a common carrier, and liable to the plaintiffs for the gins. This request, the Court refused, and on the contrary charged the jury, that if they believed that defendant had agreed to. haul the gins for plaintiffs, from Chattahoochee, and defendant’s driver had taken the gins upon his wagon at defendant’s plantation, they ought to find for the defendant. The objection both to the request to charge, and the charge as given, is for want of accuracy and fulness. There was some proof, that the gins were to be hauled from Chattahoochee. Hill swore without objection, that the defendant so stated to him. Still he took the gins at Collier’s plantation. Huff the overseer of Collier, swears, that he had an impression, that the gins were to be hauled [126] from Chattahoochee. Slaton, however, the agent of the plaintiffs, delivered the gins at defendant’s plantation. And notwithstanding Mr. Huff’s testimony, that he refused to receive them, they were left there; and from that place, they were taken by Hill, the wagoner of Collier, who started with them to Lowndes county;' and the horses giving out by the way, the gins were deposited in an old house; and that is the last we hear of them. No complaint is heard from Mr. Collier, that his wagoner exceeded his authority. No notice is given to the plaintiffs, that their property, has been put out by the wayside. They are not brought back to Collier’s plantation. Independent of the general authority of the wagoner to haul for plaintiffs, the jury might well infer from all the facts and circumstances of the case, the subsequent assent of Collier to this act of Hill, his driver. One thing is certain, the gins were taken by Collier’s driver, from Collier’s plantation, and left at an unauthorized place, and thereby the plaintiffs have lost their property. The Court further charged the jury, that if they believed^ that plaintiffs had received the price of one gin, it being to compensate the defendant for his services, in delivering the others, it was a rescission of the contract, and the defendant was not liable. Here we think, was a clear misconception of the law of the case. Had the plaintiffs sued to recover the fifth gin, it would show an abandonment perhaps of the contract. This he did not do. They brought an action to recover the price of one gin, which they did: That is, they get back the price of the hauling which they had paid in advance. Well, what then ? It left the parties just where they stood under the contract alleged to have been broken by the defendant. It is no rescission of the contract. What then is the law of the case, provided, it should turn out that the contract has been violated ? This Court laid pown the rule in Cooper vs. Young, 22 Ga. Rep. 271, to be. [127] this: That if a common carrier fails to deliver goods according to contract, and they are lost, he is liable for the value of the goods, at the place of destination, at which he engaged to deliver them,, deducting the freight. The price of the four gins in Lowndes county was §400, the freight f 100 leaving #300, as the measure of the plaintiffs’ recovery. There may be some conflicting authority upon this point. But the rule is pretty well sustained. And having been adopted by this Court, we see no reason for not adhering to it. Upon the whole, we think the case had best be remanded for a new trial. Judgment reversed.