Louisville, N. A. & C. Ry. Co. v. L. Heilprin & Co.

Mr. Justice Sears delivered the opinion of the court. It is contended by counsel for appellant that the judgment should be reversed, first, because the depositions of Dillingham and Carr were erroneously received as evidence on behalf of appellee, and secondly, because, even if the depositions be considered as properly received, yet the appellee failed to show that it, the consignor, had ever made any demand upon the appellant, the carrier, for a return to it of the goods shipped, and therefore the true measure of the damages for the delay in shipment is not the value of the goods, but the difference in their value between the time when they should have been delivered by the carrier, and the time when they actually were delivered and offered to the consignee. We are of opinion that the contention is sound in each particular. The depositions do not appear to have been ever returned to the justice of the peace who issued the cledimus, nor to have been ever used or filed in his court, or filed in the Circuit Court. So far as appears, they may have been delivered by the commissioner who took them, to the attorneys, and by them kept until trial. They were not sealed up, but open, when presented. Ho motion to suppress was necessary. Such a motion would have been inapt, for there was nothing returned to the court or in the-files to be suppressed. The depositions should not have been admitted. Chapter 51, Secs. 30 and 31, R. S. Upon the second contention, viz., that the true measure of appellee’s damages is not the value of the goods, but the difference between the value at the time when they should have been delivered and the value when they were delivered, the following authorities are in point and controlling: S. & M. R. R. Co. v. Henry, 14 Ill. 156; G. & C. U. R. R. v. Rae, 18 Ill. 488; 3 Sutherland on Damages, p. 215; Scovill v. Griffith, 12 N. Y. 509; Hackett v. Railroad Co., 35 N. H. 390. There was no obligation to return to the consignor unless and until the carrier was .directed so to do, and a failure to return was not a conversion of the goods. Hutchinson on Carriers. (2d Ed.), Sec. 392. Until directed by the consignor to do otherwise, it was thb-duty of appellant, the carrier,to deliver to the consignee, and upon a refusal by the consignee to accept, to hold the goods for further direction by the consignor. This the appellant did, and while it may be mulcted in damages for any unreasonable delay in shipment, it can not, under these facts, be held to respond for the full value of the goods. The judgment is reversed and the cause is remanded.