CHARLESTON.

#### L. Blustein & Company *v.*American Railway Express Co.

Submitted November 13, 1923.

Decided February 12, 1924.

1. *C'aebusrs*— Consignor *May Maintain Action Dor Loss of Goods Shipped or Damages Due to Delay ini Transportation Irrespective of Question of Ownership.*

Where the consignor makes a contract of shipment with the carrier, he may maintain an action thereon for loss of the goods shipped, or for damages due to delay in transportation, irrespective of the question of ownership, (p. 644).

2. *S'ame*— Delay *in Transportation*— Measure *of Damages Defined.*

The measure of damages for unreasonable delay in transportation is the difference between the market value of the /goods at the time and place where they ought to have been *644delivered and such, value at that place on the day when, they were delivered, hut where, as in this case, there is no market for the goods when delivered, and the consignor uses due diligence to dispose of them, and later does dispose of them at the best price obtainable, such delay will not affect his right to maintain an action for damages due to delay in transportation. (p. 647).

3. Appeal and *Eero»*— ¡Not *Error for Trial Court to Enter Re-mittitur in an Amount Greater Than Data on ¡Which it is Based, Would Justify.*

It is not error for the trial court to enter a voluntary re-mittitur in an amount greater than the data on which it is based would justify, especially where it would not be error to enter judgment for the full amount of! the verdict of the jury, (p. 648).

Error to Circuit Court, Kanawha County.

Action by L. Blustein against American Railway Express Company, Judgement for plaintiff, and defendant appeals.

*Affirmed.*

*Jo. N. Kenna,*and *Sam SiVuerstein,*for plaintiff in error.

*A. M. Ha/rtung, Davis & Pamter*and *Joe L. SiVuerstein,*for defendant in error.

MilleR, Judge :

This is an action in assumpsit for damages alleged to have accrued to plaintiff by reason of defendant’s failure to carry and transport within a reasonable length of time, from Charleston, West Virginia, to New York City, one barrel of ginseng, of the value of $1,265.00. From a judgment for $521.06 in favor of plaintiff, defendant prosecutes this appeal.

The first point of error assigned is that the trial court should have sustained defendant’s demurrer to the declaration, on the theory that the legal presumption! is that upon delivery of goods to a carrier the title thereto passes to the consignee, and that he alone can recover damages for injury to the shipment.

'Thé first count of the declaration alleges that plaintiff, “who was the owner of certain goods and chatties,” delivered said barrel of ginseng to defendant, a common carrier, to *645be delivered by it, witbin a reasonable time, to H. A. Schoenen & Son, in New York City; tbat defendant undertook and promised plaintiff to use proper care and diligence in conveying said goods to tbe consignee, but tbat by reason of carelessness, negligence and improper conduct on tbe part of defendant, its agents and servants, said barrel was broken open and a part of its contents, of tbe value] of $55.00, lost therefrom; and tbat tbe residue of said goods was not delivered to tbe consignee until long after tbe expiration of a reasonable time, by reason whereof tbe goods became of little value, and tbat plaintiff lost tbe means and opportunity of selling tbe same; whereby he was deprived of divers and great gains and profits, and was otherwise injured and dam-nified.

Tbe second count alleges a contract in writing between plaintiff and defendant, by which tbe defendant undertook, promised and agreed to carry and transport tbe goods in question, and deliver them to tbe consignee named therein, witbin a reasonable length of time. This count also alleges delay, and injury resulting therefrom, as does tbe first count; and it is also alleged tbat tbe goods consigned were tbe property of tbe plaintiff.

Besides tbe fact tbat each count alleges ownership in plaintiff, this action is based on a breach of tbe contract of carriage. While there is some authority to tbe contrary, tbe decided weight of opinion is tbat where goods are shipped under a contract by which tbe carrier agrees to deliver them to tbe consignee at a certain place, tbe consignor may maintain suit for loss of tbe goods or delay in transportation, in such eases it being considered, tbat tbe privity of contract between tbe consignor and tbe carrier is a sufficient foundation on which to base tbe action. 1 Micbie on Carriers, §810; 4 R. C. L., pp. 942-944, §§399-400; 10 C. J. 348; 22 L. R. A., note p. 428. It is true, as a general rule, tbat where goods are placed in tbe bands of a carrier, without qualification, to be delivered to a third party, tbe shipper parts with tbe goods and all control over them, and title passes to tbe consignee; but where tbe consignor has some special interest in tbe goods, or has a contract with tbe carrier, tbe rule is different. This proposition is sustained by *646tbe authorities cited above. In this case tbe declaration does aver that plaintiff was tbe owner of tbe goods in question ; and tbe action was brought on tbe contract of carriage, not in tort. We believe tbe declaration sufficient, and that tbe ruling of tbe trial court should be sustained.

Defendant contends that although title might have been in plaintiff at tbe time, be can not recover without showing that be used due diligence to make prompt sale of the goods after their arrival in New York.

Tbe evidence shows that plaintiff shipped tbe ginseng to tbe consignee pursuant to negotiations carried on between them by telegrams. Upon receipt of plaintiff’s telegram asking for tbe best price on the- barrel of ginseng, tbe consignee offered him $13.75 per pound “for prompt shipment.” Tbe barrel was delivered to defendant on October 30th, tbe same day plaintiff received tbe consignee’s offer to buy. Not receiving advice of delivery to tbe consignee, plaintiff made inquiry of him, and received a letter from him, dated November 6th, to tbe effect that tbe shipment bad not arrived; that tbe market was in a very unsettled condition, owing to a severe decline in Chinese exchange; that the quotation of $13.75 was for “prompt shipment;” and that be could not bold tbe offer open, and was not in tbe market at tbe present time. After unsuccessful efforts on tbe part of plaintiff and defendant to locate tbe goods en route, defendant informed plaintiff by telephone, on November 10th, that tbe barrel was still in Charleston, at tbe C. *&*O. Railway depot, and asked him to come over tbe next morning, and that the bead of tbe barrel “was busted up and we will see what can be done to fix it up.” Tbe next morning’ plaintiff went to tbe railway station, but found that tbe barrel bad been forwarded to New York at 3:00 o’clock A. M. that morning. Plaintiff swears positively that be made several attempts to sell tbe goods in question; that each of tbe merchants to whom the same was offered declined to buy because there was no market for ginseng at that time; that all the ginseng produced in this country! is shipped to China, and that there are but few exporters; that be received two or three offers at very low prices; and that be finally sold tbe barrel to tbe. original consignee on January 30th, at a price of $8.75 per *647pound, which was the highest price he could, get. We think the evidence would justify the jury in finding that plaintiff used due diligence in making sale, considering all the facts and circumstances.

The nest question presented is the refusal of the court to submit to the jury defendant’s instructions numbers two and three.

Instruction number two would have told the jury that if they believed from the evidence that plaintiff had sold the ginseng to H., A. Schoenen *&*Son, and had not thereafter obtained title to the same, or taken from the- consignee an assignment of his claim for damages, then plaintiff was not entitled to recover. What we have just said with respect to the demurrer to the declaration sufficiently disposes of this assignment of error.

Instruction number three would have told the jury that if they believed from the evidence that plaintiff had sold the goods in question to the consignee at the time of delivery thereof to defendant, and that the same were delivered to and accepted by the consignee, the defendant company would not be liable for damages caused by delay in shipment, or for the loss of a portion thereof.

On November 13th, H. A. -Schoenen & Son wrote plaintiff as follows: “Your barrel of ginseng finally came in yesterday; however, we have not opened the same as yet, for the reason that we are not buying at the present moment. * * * We will hold this barrel here subject to your orders, and, if you so request, we will return the same to you upon receipt of your instructions tq do so. ’ ’ There is no evidence of acceptance. The consignee received the goods from defendant, but held them for the plaintiff, subject to his orders. And, since we have held that plaintiff was entitled to maintain a suit on his contract with the carrier, acceptance by the consignee becomes immaterial.

As to the loss of a portion of the ginseng, the evidence shows that when the barrel was delivered to defendant it contained 92 pounds of ginseng. Plaintiff so testifies; and there is no evidence to the contrary. It seems that plaintiff finally disposed of the goods on the basis of 88 pounds at $8.75 a pound, for $770.00. The measure of damages for *648unreasonable delay in transportation is the difference between the market value of the goods at the time and place where they ought to have been delivered and. such value at that place on the day when they were delivered, whether such damages result from a decline in the market, from intrinsic deterioration, shrinkage, or a combination of these causes. 3 Sutherland on Damages, §§906-907; 1 Miehie on Carriers, §942; 10 C. J. 309; 4 R. C. L. 931; *Ryland & Rankin v. Railway Co., 55 W.*Va. 181. All the evidence is to the effect that there was no market for ginseng at the time the shipment in question reached its destination, and that plaintiff could have obtained no better price than that at which he sold, at any time between November 11th and January 30th. But plaintiff did not bring' suit immediately upon the accrual of his cause of action. He made an effort to dispose of the goods, and finally did dispose of them at the best price obtainable; so far as the evidence shows, thus saving to defendant the amount realized. The verdict of the jury was for the difference between the price at which plaintiff had contracted to sell to ,H. A. Schoenen & Son and the amount which he received for them, with interest.

After the verdict of $561.38 was rendered by the jury, plaintiff tendered a remittitur of $40.32, “being $9.00 per pound for four pounds of ginseng with interest from October 30, 1920, alleged in the declaration of the plaintiff herein to have been lost from the shipment,” and in which.it is further admitted that there was no proof to sustain such loss. The error assigned as to this remittitur is that there was no data in the evidence from which the court could substitute his finding for that of the jury. Plaintiff swears positively that he delivered to the defendant 92 pounds of ginseng. If he had sold the shipment at that weight instead of 88 pounds, he would have received $35.00 more than he actually realized ' on the goods, which with interest for two years would amount to a little less than the amount of the remittitur. Since the amount of this voluntary remittitur is more than defendant would have been entitled, if entitled to any amount, it can not complain. Besides, if the court had entered judgment on the verdict of the jury, without the remittitur, we could not *649say that defendant would bave been prejudiced thereby the verdict being' for the actual loss of plaintiff, plus interest.

The judgment will be affirmed.

*Affirmed.*