[QUEEN'S BENCH DIVISION.] MONTEITH V. THE MERCHANTS' DESPATCH AND Carriers-Delivery at wrong destination-Measure of damages-Fall in market. The defendants contracted with the plaintiff to carry a car-load of clover seed to Liverpool, and gave him a bill of lading therefor. While it was on the way, by a new contract its destination was changed to London, for delivery to a supposed customer of the plaintiff's, and a new bill of lading was given to the plaintiff; but, by a mistake of the defendants, the seed went by a line of steamships to Liverpool, and as soon as the mistake was discovered the defendants notified plaintiff. After great delay, which the learned Judge at the trial found to have been caused by the defendants, the seed reached London, and, the plaintiff's supposed customer having refused it, was sold at a reduced price, the market having fallen between the day when the seed should have been delivered in London and the day of sale. The learned Judge found a verdict for the plaintiff, and assessed as damages, in addition to freight from Liverpool to London, the difference in market price between the date at which the seed should have arrived in London, if it had been shipped by the right line, and the day it arrived there. Held (CAMERON, J., dissenting), that the damages were properly assessed, the finding of fact being that the delay was caused by the defendants. Per CAMERON, J.---The damages, which were the material result of the breach of contract to carry to London, were what it cost the plaintiff to have the goods taken to London, and a reasonable sum to compensate him for the expense, trouble, and correspondence occasioned by the seed having been sent to a wrong destination; and damages resulting from a fall in the market were not incident to the breach of the contract. THIS action was brought by the plaintiff to recover damages from the defendants, for not delivering to the plaintiff 170 bags, or 26,774 pounds, of clover seed, at London, England, according to the terms of a bill of lading, bearing date, Waterford, January the 22nd, 1880, signed by one John Barr, agent of the defendants, within a reasonable time. The case was tried at Toronto, on the 5th day of January, 1882, before Osler, J., without a jury, the jury during the trial having been dispensed with by consent of parties. The action was commenced and issue joined before the Judicature Act, 1881, came into force, and the plaintiff's declaration contained three counts, as follows: 1. That, in consideration that the plaintiff would deliver to defendants, as and being carriers of goods for hire, cer tain goods to be by defendants carried from Waterford, in the county of Norfolk, Ontario, to London, England, and there deliver them to the plaintiff, or his order, for reward to defendants, defendants promised plaintiff to carry the same from Waterford to London, aforesaid, and there deliver the same for plaintiff, or his order; and the plaintiff delivered the same to defendants, and defendants received same for the purpose and on the terms aforesaid, yet defendants did not carry the same for plaintiff from Waterford to London, and deliver the same to him, or his order, as aforesaid, whereby the plaintiff was deprived of the same for a long time, and the same were diminished in value. The second count was the same in effect, only alleging the promise of defendants to have been to deliver the same according to the directions of the plaintiff within a reasonable time, and the breach, non-delivery within such reasonable time. The third count was the same as the second, only alleging that the goods were 170 bags of clover seed of the value of $3,000, and, as a breach, that defendants negligently refused and neglected to deliver the same to plaintiff in London pursuant to plaintiff's directions, whereby he sustained damage to the amount of $2,000. Pleas.-1. That plaintiff did not deliver to the defendants, nor did they receive from plaintiff said goods for the purpose and on the terms alleged. 2. That defendants did not promise as alleged. 3. To the second count, that they did deliver the goods within a reasonable time. 4. That after delivery of the goods by plaintiff to defendants, and while in transit to their destination, and at the port of Liverpool, defendants delivered the goods to plaintiff, and the plaintiff accepted same at Liverpool as and for and instead of a delivery at London, the place of destination. 5. By way of defence on equitable grounds, that the goods were delivered to defendants at Waterford to be carried to Liverpool for reward to them: that said goods were shipped from Waterford in pursuance of the purpose for which they were delivered, and after they were so shipped plaintiff requested defendants to change the destination of said goods from Liverpool to London, and to cancel the bill of lading, and sign another bill of lading, mentioning London instead of Liverpool as the destination of the said goods; and plaintiff and defendants, then believing that said goods were at such a stage of their transit that their destination could be readily changed, without any additional reward additional reward or consideration, did promise the plaintiff so to change the destination of said goods, and did cancel the bill of lading and signature shewing the destination of said goods to be London; and defendants did, by all means in their power, endeavour so to change their destination, but failed so to do for the sole reason that said goods had then reached a stage in their transit which rendered a change of their destination impossible until they should reach Liverpool, of which defendants gave plaintiff notice so soon as they became aware thereof. Averment, that such last mentioned promise and such last mentioned bill of lading, besides being made and signed without any consideration, were made and signed under a mistake mutual to plaintiff and defendants, they believing that said goods were then at a stage in their transit at which their destination could be readily changed by defendants, when the fact was otherwise; and other than aforesaid there never was any promise by defendants, or any agreement between plaintiff and defendants, respecting the carriage of the said goods; and defendants did, in accordance with the first mentioned promise, safely and securely carry the said goods to Liverpool aforesaid within a reasonable time, and then delivered the same to the plaintiff, and the plaintiff accepted and received said goods from defendants at Liverpool as aforesaid. Averment, that said promise so to change the destination of said goods should not, nor should said bill of lading shewing said destination to be London, under the circumstances, be held binding 7-VOL. I O. R. upon defendants, and the last mentioned bill of lading should be ordered to be delivered up to be cancelled. Issue. At the trial the following appeared to be the undisputed and proved facts. The defendants were a Transportation Company, with their head office at Cleveland, in the State of Ohio, and carried on the business of carriers, not by meaus of conveyances or vessels of their own, but by means of the different railways in the Province of Ontario and the United States, and by different lines of steamships from the United States to Great Britain. Goods shipped from any point in said Province, through the United States, to any port or point in Great Britain or elsewhere beyond the United States, required to pass through the States in bond; and goods entering the States by the International Bridge, across the Niagara river, intended to pass through in bond, were put in bond at Black Rock, in the State of New York. Defendants had agents at various places in Ontario called foreign agents. On the 21st of January, 1880, the plaintiff caused to be delivered to one R. T. Randall, as an agent of the company at Waterford, in the county of Norfolk, in Ontario, 170 bags of clover seed, containing 26,774 pounds, to be shipped by defendants to Liverpool in England, and there to be delivered to the plaintiff or his assigns, he or they paying freight on landing of the seed. The said Randall delivered to plaintiff according to the usual custom two copies or duplicate bills of lading, dated 21st January, 1880, whereby defendants undertook to carry said seed to Liverpool, and there deliver the same to plaintiff or his assigns; the carriage from New York being by the Inman line of steamers. After the seed had been so delivered to defendants at Waterford, the plaintiff who resided in and carried on business at Toronto, applied to John Barr, described in the bills of lading, issued by the defendants, as "a foreign freight agent," to ascertain if the destination of the seed could then be changed to London; and Barr, after telegraphing to an agent of the defendants at Black Rock, to ascertain whether the seed had passed that point, and learning that it had not, granted a fresh bill of lading, dated 22nd January, 1880, whereby defendants undertook to carry the seed to London, the carriage being by the Merchants' Despatch and Transportation Company, and the Anchor Line of Steamships; and the freight being stated to be 761 cents instead of 70 cents per hundred pounds. These bills were in form identical with the previous bills, except in the particulars of place of destination, rate of freight, and date. At the time of the delivery to plaintiff of the new bills of lading, the former bills were surrendered and delivered up to the agent Barr, who at once informed the agent at Black Rock, and W. H. McIlhanny at New York, the latter being described on the bill of lading as defendants "General Foreign Freight Agent," New York, of the change. The agent at Black Rock, one J. J. Barton, intended to make the proper alteration to bond the seed to London, instead of Liverpool, but by inadvertence left the destination Liverpool, as it was under the former bill, but made the shipment to the care of W. Monteith, the plaintiff, London. It further appeared that the practice was for the shipper to send an invoice of the goods, shewing their value, along with the goods, which invoice, with a third copy of the bill of lading, the carrier of the goods held. The bond furnished to the United States custom authorities was based upon the invoice. Defendants appeared by their course of dealing to do all that was requisite to the passing of the goods delivered to them in bond through the States -the shipper not concerning himself with the bonding or the transit of the goods in any way after their delivery to defendants. The Anchor Line was the line employed in the shipment of goods to London, and the Inman Line to Liverpool. It appeared that goods once placed in bond had to be carried to the destination indicated-at least no change in this respect could be made withot delay and trouble. When the plaintiff received from Barr, defendants' agent, at Toronto, the second set of bills of lading he drew upon Messrs. Hearn & Brother, of Ipswich, for the value of 170 bags of seed, under the supposition that they |