M. T. 1865. "than, but for the aforesaid breaches of contract, they would have Exchequer. MATHEWS บ. DUBLIN AND DROGHEDA RAILWAY. 66 66 "been; and were, by reason of the premises, not only bruised and “injured, but also became and were distempered and affected with 'disease, and maimed, and rendered lame; and the plaintiff not only lost large profits which he would otherwise have made by "the sale thereof, but also was obliged to make, and did make, "divers journeys; and incurred expense and loss of time in endeavouring to cure and heal said cattle, and in bringing them "to divers places for sale; and in finding, keeping, and curing "the same; and was ultimately obliged to sell the same for a less "price than, but for the breaches of contract aforesaid, he could "and would have sold them." 66 6 The second count was as follows:-"That defendants were "carriers of cattle from Kells in Ireland to Huntingdon in England, "by the route and in manner following-that is to say, from Kells "to Dublin by railway, thence to Holyhead by the steamer of a "line known as The London and North Western line,' and from "Holyhead to Huntingdon by railway; and in consideration that "the plaintiff would deliver to the defendants, as such carriers, "being, to wit, thirty-nine head of cattle, to be carried by them, "by the route and manner aforesaid, from Kells to Huntingdon, "and at Huntingdon aforesaid to be delivered for the plaintiff, "defendants promised plaintiff to forward said cattle from Dublin "to Holyhead (being part of said journey from Kells to Hun"tingdon) by a certain steamer, which was advertised to sail from "the North-wall, Dublin, for Holyhead, at or about the hour of "ten o'clock in the evening of the 17th day of November 1864; "and the plaintiff delivered to the defendants, and the defendants "received and had from the plaintiff the aforesaid cattle, for the purpose and on the terms aforesaid; and all conditions were performed, things happened, and times elapsed, necessary to en"title the plaintiff to have the said cattle forwarded from Dublin to Holyhead by the same steamer which the plaintiff avers duly "sailed from Dublin to Holyhead; but the defendants did not for"ward the said cattle by said steamer, but, on the contrary, delayed "and detained them until the sailing of a steamer which left Dublin 66 Exchequer. MATHEWS v. "and arrived at Holyhead much later than the first-mentioned M. T. 1865. "steamer; and, by reason of the premises, the said cattle were "delayed and detained upon their said journey, and plaintiff incurred "all and singular the special damage in first count mentioned. There was also a count for non-delivery of the cattle at Huntingdon within a reasonable time. To the first count the defendants pleaded a traverse of the contract, and a waiver of it by the plaintiff. To the second count the defendants pleaded, first, a traverse of the contract, for the purpose and on the terms alleged. Secondly; a mutual waiver of the contract before breach, and discharge of the defendants by the plaintiff from all liability thereunder. Thirdly; "That the contract therein stated was subject to a condition, viz., "that if it should be found, on the arrival of the cattle in said "paragraph mentioned, in Dublin, that there was not room for the "conveyance of same by the steamer leaving the North-wall, "Dublin, at the hour in said paragraph stated, the defendants "should not be bound to forward said cattle by said steamer; "and defendants aver that, on the arrival in Dublin of said cattle, "there was not room for the conveyance of same by the steamer "leaving the North-wall at said hour; and the defendants aver that "the grievances in said paragraph complained of were caused and "occasioned by said want of room, and not otherwise." And, fourthly; "That the cattle in said paragraph respectively men"tioned are the same cattle; and defendants say that said cattle 'were delivered by the plaintiff to, and accepted and received by "the defendants, to be carried and conveyed under and subject "to a certain contract and condition, which rendered them not "liable for the loss, damages, and expenses, in said paragraph "respectively mentioned, to wit, that the Company would in no case be responsible for the delivery of cattle or live stock at 66 66 any particular time, or for any particular market; and defendants aver that the plaintiff's claim was a loss, within the true intent "and meaning of said condition, and not otherwise." The case was tried by the LORD CHIEF BARON, before a special jury, at the sittings after Trinity Term 1864. The material facts DUBLIN AND M. T. 1865. of the case are given in the judgment of the Court by Baron Exchequer. MATHEWS v. DROGHEDA [RAILWAY. FITZGERALD. Upon the amount of damages, his Lordship left the following DUBLIN AND questions to the jury:-First, did any damages result to the plaintiff from the delay in the forwarding of the cattle, by reason of the loss of the sale of such cattle at Huntingdon or Harford ?—Yes. Secondly; did any damage result to the plaintiff from such delay, by reason of the cattle, in consequence of such delay, catching the distemper; or by reason of the distemper, in consequence of such delay, exhibiting itself sooner than it would otherwise have done, and before they were sold at St. Ives on Monday the 21st, and at Bury St. Edmonds on Wednesday the 23rd of November? No loss. His Lordship told them to bear in mind that the plaintiff would not be entitled to damages for the hastening of the breaking out of the distemper if, had there been no delay, the distemper would have shown itself before the sale. The jury assessed the plaintiff's loss, by reason of the delay in forwarding the cattle, at £51. 17s. 8d. Leave was reserved to the defendants to move, first, to enter a verdict for the defendants, as to the issues on the second and third counts, if the Court should be of opinion that there was no evidence of a contract; secondly, to reduce the damages to nominal damages on each of the counts respectively, or to such sum as the Court should think fit. A conditional order in accordance with this ruling having been obtained Butt, and Palles and Lyster, showed cause. The contract entered into by the station-master at Kells, as the authorised agent of the defendants, was to convey the plaintiff's cattle to Huntingdon by the steamer sailing from the North-wall, Dublin, on the night of the 17th of November, and to deliver them at Huntingdon within a reasonable time. That contract was clearly violated; and the transit of the cattle occupied a considerable time. There was evidence to go to the jury upon the second count, and the value of the evidence was correctly pointed out by the LORD CHIEF BARON. The condition in the risk note as to any particular market not being guaranteed was unjust and unreasonable: Bolckow M. T. 1865. Exchequer. MATHEWS v. v. Seymour (a); Garnett v. Willan (b); M'Manus v. The Lancashire and Yorkshire Railway Co. (c); Peek v. North Staffordshire Railway (d); Affirming Simons v. The Great Western Railway DUBLIN AND Co. (e); Beal v. The South Devon Railway Co. (f). Serjeant Armstrong, S. Ferguson, and W. Boyd, contra. Parol evidence was not receivable to construe the contract. The plaintiff was well aware of the practice of the London and North Western Railway Company when putting cattle on board of their steamers. He had read the sailing bill posted at Kells, and he had frequently brought cattle by the route which he took upon the 17th of November. The proviso, as to there being room in the steamvessel, qualified the contract entered into by the station-master at Kells with the plaintiff; and, as he was aware of the proviso, there was no evidence of a contract. The jury found that no injury had occurred to the cattle by their detention in Dublin on the night of the 17th of November; nor should any damages have been given for the detention of the cattle, when the plaintiff knew of the proviso. The loss upon the sale at St. Ivers Harford and Bury St. Edmonds was only nominal. There was no evidence of the contract to go to the jury. Palles, in reply. The contract was not contained in the risk note solely; it was partly in writing and partly by parol. It was a question for the jury what was the contract. The jury found that a contract as declared on had been entered into: Harris v. Rickett (g); Rogers v. Hadley (h); Walker v. The York and North Midland Railway Co. (i); Anderson v. The Chester and Holyhead Railway Company (k). (a) 17 C. B., N. S. 107. (c) 4 H. & N. 327. (e) 18 Com. B. 805. (9) 4 H. & N. 1. (i) 2 H. & N. 750. (b) 5 B. & Ald. 53. (d) 10 H. of L. Cas. 473, 566. (f) 3 Hurl, & Colts. 337. (h) 2 H, & Colts. 227. (k) 4 Ir. Com. Law Rep. 435. DROGHEDA RAILWAY. M. T, 1865. MATHEWS FITZGERALD, J., delivered the judgment of the Court. This case was tried before my LORD CHIEF BARON and a special jury at the sittings after last Hilary Term. The plaintiff is a DUBLIN AND cattle-dealer, the defendants are carriers; and the action was in substance for delay in delivering, at Huntingdon in England, certain cattle of the plaintiff's, despatched by the defendants' railway from the town of Kells, in November last. DROGHEDA RAILWAY. The only count of the plaint material to be stated is the second. It states:-That the defendants were carriers of cattle from Kells in Ireland to Huntingdon in England-that is to say, from Kells to Dublin by railway, thence to Holyhead by the steamers of a line known as the London and North Western Line, and from Holyhead to Huntingdon by railway; that, in consideration the plaintiff would deliver to them thirty-nine head of cattle, to be carried by them in manner aforesaid, from Kells to Huntingdon, and at Huntingdon to be delivered to the plaintiff, the defendants promised to forward said cattle from Dublin to Holyhead by a certain steamer, which was advertised to sail from the North-wall at Dublin, for Holyhead, at or about the hour of ten o'clock on the evening of the 17th of November 1864; that the plaintiff delivered to the defendants, and the defendants received from the plaintiff, the aforesaid cattle, for the purpose and on the terms aforesaid; that all preliminaries necessary to entitle the plaintiff to have the cattle forwarded to Holyhead from Dublin by the said steamer, were fulfilled; that the defendants did not forward the cattle from Dublin to Holyhead by the said steamer; but on the contrary, delayed them until the sailing of another steamer, which left Dublin and arrived at Holyhead much later than the first-mentioned one; that by reason of the premises the cattle were delayed and detained on their said journey. As special damage the plaint states, that the plaintiff intended to offer the cattle for sale at Huntingdon on Saturday the 19th of November; and by reason of the delay, the plaintiff was unable to have the cattle in Huntingdon upon that day in time to offer the same for sale. It further stated, that by reason of the premises, the cattle became and were distempered, and the plaintiff not only lost |