Two questions are presented for the decision of the court, on the motion for a new trial in this case. 1st. Is the judgment recovered before the justice of the peace in the city of Hew York, a bar to the plaintiff’s recovery in this action 1 2d. Was the decline in the market price of the sheep, between the time they should have arrived in Hew York and the time when they did arrive, a proper measure of damages. On the first point, the judge advised the jury that the judgment recovered in the justice’s court in the city of .Hew York, by the defendants, in the suit commenced by the plaintiff’s agent, for the same cause of action for which *286.this suit was brought, was a bar to the plaintiff’s claim, unless it was commenced and prosecuted without the plaintiff’s authority. And he also instructed the jury that if the suit was commenced without authority, and the plaintiff had since ratified Taylor’s (the agent’s) authority, it was still a bar. I can see no error in this part of the charge. It was as distinctly in favor of the defendant as the judge could reasonably be expected to make it, on submitting the question, under the evidence to. the jury. It was a question for the jury whether the suit in question had been brought or ratified by the plaintiff, and they have passed upon it conclusively. The other point, respecting the fall in the market price of the sheep between the -time when they should have been delivered and the time of their actual delivery, is one of more difficulty. On this point the judge charged the jury, that if they found that the plaintiff was entitled to recover^any loss sustained by him by a fall in the market between the times when the sheep should have arrived and when they did arrive, was a proper element of damage." This view of the question of damages was more fully amplified and explained; but the judge, in substance and effect, allowed and directed the jury to take the fall in the market value of the sheep into account, in making up their verdict, as a fit and proper basis or element of damages, in connection with other facts and circumstances. That the charge of my brother Strong was entirely correct in substance on this point I should have had no doubt, but for the very able and elaborate opinion of Judge Marvin, in the case of Wibert v. The New York and Erie Rail Road Company, (19 Barb. 36.) Ordinarily we should feel ourselves bound to follow an opinion so carefully pronounced at general term ; but the decision at the circuit being in conflict with this opinion, we are called upon to decide the point presented for ourselves ; and considering the importance of the question, and the likelihood that our decision of it as an open question will tend to hasten its settlement in the court of dernier resort, I will proceed to present such views as have led me, with much diffidence, to dissent from the conclusions of the learned and experienced judge who gives the opinion of the general term of *287the 8th district. The complaint in this action states that the plaintiff, on some Monday in the month of March, 1853, delivered to the defendants, as common carriers, 80 fat sheep, which the defendants then and there accepted and received of and from the plaintiff, to be safely and securely carried and conveyed over the route of their said road from Albany to New York city, and to be delivered on the next day, Tuesday, to the plaintiff, in New York. Under the evidence, the jury would have been warranted in finding that the sheep were to be delivered on Tuesday morning. The agent of the defendants said, when they were received by him, that they would be in New York the next morning at 4 o’clock, and they did not arrive till Thursday morning. Whether the defendants were bound as upon an express contract to deliver the sheep on Tuesday morning or to deliver them without unnecessary delay, can make no difference; for the carrier’s duty rests upon contract implied in law. (Edwards on Bailments, 466.) He is bound to transport and deliver the goods within a reasonable time. (Id. 521, 4, 5.) But here there was a time specified when the goods were to be delivered, and that time corresponds with the time when they should be deliver! in the ordinary course of the business of the defendants. It is apparent upon the facts of this case, and the jury have so found, that the. plaintiff actually sustained a loss from the non-delivery of the sheep according to thezcontract, or according to the custom in respect to the time required or employed in- the transportation of such articles, to the amount claimed, $125. This damage, in the aspect in which the point is presented, resulted from a fall in the market value of the sheep, between Tuesday morning and Thursday. The damages to be recovered, Judge Marvin Says, must always be the “ natural and proximate consequences of the act complained of,” and cites 2 Qreenl. Ev. 253, 254, 256; 5 Wend. 538; 6 Hill, 648, and Sedg. on Damages, ch. 3; and he argues that the fall of price in the market was not a proximate consequence of the delay of the carrier in making the delivery. He says, “ the damages flowed from the decline in price, and they are not. the result of the delay.” Again, the learned judge says, “The question is, *288what connection or relation was there between the act complained of and the decline in the market in the price of butterand again, “ But how it can be argued that a decline in price is a consequence of the non-arrival of the article, I am not able to comprehend.” Also, “ There was no natural connection between the breach of duty by the defendant and the decline in the price of the butter in the market.” The theory of damages as suggested and involved in these extracts from the opinion of the learned judge is, that the damages properly recoverable in an action must be the direct and immediate consequence of the injury or breach of duty complained of. The rule of damages thus enunciated belongs to the large class of injuries, direct and immediate, for which, under the old nomenclature, the action of trespass was the appropriate remedy, and practically ignores the large class of consequential injuries for which trespass on the case or assumpsit wras the proper form and name of the action. The first case which the learned judge cites upon this theory of damages is Davis v. Garret, (6 Bing. 716; 19 Eng. Com. L. 321.) In that case the action was for the loss of 114 tons of lime, received by the defendant on board of his barge or vessel, to be carried and conveyed on board said vessel from Blinby Cliff, in Kent county, to the Regent’s canal, in Middle-sex. It appeared, on the trial, that the defendant deviated from the usual and customary way and course of the voyage, without justifiable cause, and that, in consequence, the vessel became exposed to a great storm at sea, in which the lime was heated and the barge caught fire and was lost. A verdict was found for the plaintiff, and a rule obtained, nisi, for a new trial. The argument of the learned sergeant, Taddy, for the defendant was, “ That the deviation by the master of the barge was not a cause of the loss of the lime sufficiently proximate to entitle the plaintiff to recover, inasmuch as the loss might have been occasioned by the tempest if the barge had proceeded in her direct courseprecisely as Judge Marvin holds that the delay in delivering the butter did not cause the decline in the market. The deviation of the master "from the course did not produce the storm, and the storm caused the loss of the barge *289and the lime. The learned Judge Tindal, 0. J., says, “ But the objection taken is, that there is no natural or necessary connection between the wrong of the master, in taking the barge out of its proper course, and the loss itself; for the same loss might have been occasioned by the very same tempest if the barge had proceeded in her direct course. But if the argument were to prevail, the deviation of the master, which is undeniably a ground of action against the owners, would never, or only under very peculiar circumstances, entitle the plaintiff to recover. For if a ship is captured in the course of deviation, no one can be certain that she might not have been captured in her proper course. And yet, in Parkes v. James, (4 Camp. 112,) where the ship was captured while in the act of deviation, no such ground of defense was ever suggested.” The verdict was sustained. This case seems to me to confute the theory that damages must be proximate, in the sense in which these terms are used by Judge Marvin. This case holds that the plaintiff may recover for indirect or consequential damages which result from a breach of duty or a breach of contract, and that it is not essential that the breach of duty in the carrier, or the non-performance of his contract, should be the immediate and direct cause of the damage, but only that the damage should be the immediate and direct result of the violation of the duty or breach of contract, which is quite a different thing. The learned judge also cites the case of Bracket v. McNair, (14 John. 170,) and O'Conner v. Poster, (10 Watts, 418,) and holds that they are inapplicable to the case. These cases seem to me applicable to this extent, that they both apply to a common carrier, who fails to deliver property according to his contract, the same rule of damages that applies between vendor and vendee ; that is, the difference between the contract price at the place of purchase by the vendee and of shipment by the carrier, and the place and time of delivery. In the case in Watts, Sergeant, J. says, “ The defendants were bound by their contract to transport the wheat from Pittsburgh to Philadelphia, and have shown no legal excuse for refusing to do so. The question is, what is the measure of damages to be paid by the *290carrier for violating such a contract. The defendants have not fulfilled their contract, and they ought to place the plaintiff in the same situation as if they had fulfilled it. They ought to be indemnified. The wheat was a consumable article of merchandise at its port of destination, calculated for sale in the market there, where the price fluctuates from day to day and sometimes from hour to hour.” This was the precise case with the butter in Wiberfs case, and the sheep in this ease, fatted as they were expressly for the New York market, and designed to go into the daily consumption of that city. The learned judge further says, <( The market value of the article there, at the time it would probably have arrived and been ready for sale, is what it would have been worth to the plaintiff; and the difference between that and the value at the place of shipment, added to the cost of freight, is the amount of loss which the plaintiffs have sustained. Such is the well established rule between vendor and vendee. (7 Hill, 74. Dey v. Dox, 9 Wend. 129. 2 Barn. & Cress. 629.) The difference between the contract price and the market value at the time and place of delivery is the measure of damages in all cases of sale of merchantable commodities between vendor and vendee ; except that the-carrier is entitled to deliver, and the owner is bound to receive, the property, after the time fixed for the delivery by the contract, or the reasonable time necessarily employed in it transportation, in the absence of any express contract. The analogy and the reason of the rule is perfect as between the carrier and the owner, as between vendor and vendee. And the rule was practically so applied in Smith v. Griffith, (3 Hill, 333.) This was as an action on the case, against the carrier, for damages arising from delay in the delivery of mulberry trees, or seedlings. The trees were delivered to the defendant at Troy, April 22,1839, for transportation to Lyons, Wayne county. After delivery they were allowed to remain át Troy till the 24th day May following, and were then forwarded to, and received by, the plaintiff about the first of June afterwards, when they were found to be considerably damaged. The question was, what damages the plaintiff was entitled to recover. Considerable *291conflicting testimony was given at the circuit in regard to the market value of the trees at the time of theinjury, and the plaintiff had a verdict of $12.50. The defendant on the trial sought to mitigate damages, by showing that subsequent experience had shown that the trees were of little or no intrinsic value at the time of the injury, and that the prices at which they were held and sold in the market at the time of the injury, were fictitious and inflated. Speaking of this evidence, on the motion for new trial, Judge Nelson says : “All this evidence, I am of opinion, was properly rejected, as having no legitimate bearing upon the question. The damages to which the plaintiff is entitled, if any, should afford an adequate indemnity fob the loss sustained at the time the injury happened, and the admission or rejection of evidence should be regulated with a view to produce this result in the opinion of the jury. If the goods are wholly lost or destroyed,-the owner is entitled to their full worth at the time of such loss or destruction. In trover the measure of damages is the value of the goods at the time and place of conversion, with interest, and perhaps at any time between that and the trial. (14 John. 128. 3 Cowen, 82.) And, upon the same principle, if goods are partially injured, and the party seeks redress for the qualified damage, the meas-* ure should be in that proportion. Assuming that there is no defect in the quality, the fair test of its value, and consequently of the loss to the owner, is the price at the time in the market.” This case, in its facts and in the principle upon which it is decided, is quite in point in opposition, to the opinion in Wibert’s case, and in confirmation of the charge of my brother Strong, at the circuit, in the present case. The damages for which the carrier was held liable, resulted from the delay of the carrier in the delivery of the trees within a reasonable time after their receipt, It was not a case of contract. The measure of damages was the deterioration of the property between the time when it should have been delivered and the period of its actual delivery, with reference to the market value when it should have been delivered. The owner received the property as in this case and in the case of Wibert, and *292as he was clearly bound to do. (6 Hill, 588. 2 Kernan, 509. Parsons on Contracts, 659.) Delay in the delivery is not a conversion by the carrier. (Idem.) If the loss from the de- j terioration of the property in its market value, between the I time when it should be delivered and the time of the actual delivery, be the true measure of damages when there is a par- f tial injury to the property, it must be the true measure of I indemnity where there is unreasonable delay in the delivery. | I can conceive of no reason for a distinction between the eases, j It is the loss which the party suffers from the breach of duty | or breach of contract of the carrier. The carrier is in fault \ for his negligence or failure to perform his contract, and the ’ owner suffers loss. This is the adequate indemnity for the loss sustained, spoken of by Judge Nelson. The failure to deliver in a reasonable time may fitly, for the purpose of damages, be deemed a partial conversion at that time and for the time being. To the extent of the loss or injury, it is a practical conversion from that time till the period of delivery. The owner is bound to receive property when delivered, but if it is then depreciated in value in the market, there can be no other rule than that the carrier must make up the loss. The case of Scovill v. Griffith, (2 Kernan, 509,) it seems to me, virtually affirms the same view of the question of damages. This action was against the carrier, claiming to recover the value of several boxes of merchandise, in consequence of the unreasonable delay of the carrier in delivering them. At the trial before Justice Edwards the jury were charged that the rule of damages, when the goods ¡were not delivered within a reasonable time, as was this case, “ would be the difference be- . tween the highest market price of the goods when or after they should have been delivered, and the time when they were actually tendered, and the expense the plaintiffs were put. to by the delay.” To this portion of the charge there was no exception. In the opinion of Judge Hand, in the court of appeals, he says, speaking of the delay in the delivery of the goods, “ This was inexcusable, and undoubtedly entitled the plaintiffs to all real damages sustained by them which were the natural con*293sequences of the neglect;” and he says, “ When there has been deterioration and loss, the carrier is liableand he cites 6 Bing. 716; Davis v. Ganit, (supra;) Ellis v. Free, (8 John. 581;) Story on Bailments, § 588. In the opinion of Judge Gardiner he refers to the charge of the judge in regard to the damages, in the way of approval, and also in another part of his opinion he says: “ When there is an omission to deliver property in a reasonable time, the owner is entitled to a full indemnity, and refers to the market value as one of the circumstances entering into the element of damages.” No doubt seems to have been suggested in this case but that the charge of the judge at the circuit on this point was right. The principle of these cases casts upon the carrier the loss arising from depreciation of the property, while the same remains in his his hands after the period when it should be delivered. The case of Wilson v. The York, Newcastle and Berwick .Railway Co., (18 Eng. Law and Eq. Rep. 558,) is a case of the loss of profits consequent upon the neglect of the carrier, or failure to comply with his contract in regard to the delivery of fish, designed for the London market. This case, in this aspect, would perhaps warrant a recovery in the present case for the damages demanded as the loss of profits on the sheep, but it at least is authority for the loss arising from the depreciation of the property in the market, consequent upon the unreasonable delay of the carrier in its delivery. It appears in the-case of Wibert, that between the time when the butter, with reasonable diligence, might have been delivered in New York, and the time when it was actually delivered, the price of butter had declined four cents a pound in the market. In respect to this difference in price the learned judge says: “ Suppose that we admit this brings the case within the rule of resulting damages, and that the loss was the consequence of the negligence, and the question will then be presented, were the damages proximatel” He then reasserts that the proximate cause of the loss was the decline in the market; and in another part of the opinion he says, “ I find it difficult in this case to consider this part of the rule as to damages im*294mediately resulting from the act complained, of, as I have been unable to see that the fall in the market price of the butter resulted at all from the breach of duty by the defendant. This must be established before we can fix our minds upon the question of proximity or remoteness,” and he refers to Masterton v. Mayor of Brooklyn, (7 Hill, 67,) and cites from the opinion of Judge Nelson, that “ remote and contingent damages depending upon successive schemes or investments are never allowed for a violation of a contract.” This is all true; but in that case it was held that the party was entitled to recover in damage's the fruits of his contract—what he would have realized if the contract of the other party had been performed. The loss of profit was contingent—was not a necessary consequence of the breach of the' defendant’s contract, and in this sense was not proximate, more than the loss of Wibert was proximate upon the neglect of the rail road company to deliver the 'butter within a reasonable time. No damages necessarily resulted from the refusal of the city of Brooklyn to receive the marble, in the case of Masterton, more than from the delay of the rail road company to deliver the butter, in the case of Wibert; and yet in both cases the. damages to the plaintiff resulted from, or were consequent upon, the refusal or neglect in question. If the proximity of the injury to the damages must be so intimate in the relation of cause and effect that the injury immediately and necessarily produces the damages, or must do so to sustain an action without the intervention of any immediate cause or agencies, the rule would exclude a recovery in all such cases as that in Masterton v. The Mayor of Brooklyn, and indeed in all cases except for injuries of force or of palpable connection. The rule that the action can only be sustained'for the damages which are proximate, as stated by the learned judge, is one of a general character and of universal application. It must apply with equal force- between vendor and vendee, and in all cases of nonfeasance or for consequential injuries. If a man digs a pit in the street in front of his house, and his neighbor falls into it and break a leg or an arm, the digging of the pit would not be the proximate cause *295of the injury, as the learned judge states the rule, for the digging of the pit would not cause the neighbor to fall into it, more than the neglect of the defendant in the suit of Wibert to deliver the butter caused the decline in the price of butter in the market. So if a man lets a horse loose in the street, and the horse in wildness and fury causes another horse to break loose and run over a man and break his wagon or his leg, it might be said that letting the first horse loose was not the proximate cause of the breaking of the wagon or the leg by the second horse, but this would not do; the injuries must be traced to the primal cause, even though there be several intermediate links in the chain of cause and consequence. There might not be any loss to the plaintiff in the case of Master-ton v. The Mayor of Brooklyn, from the refusal of the defendant to receive the marble. That was, as Judge Marvin says in respect to the non-delivery of the butter, contingent; but the contingency in such cases must be at the risk of the party who is guilty of a breach of contract or a breach of duty. If there be no loss there can be no damage, and no action could be sustained, or at most the damages would be merely nominal. The case in. 7 Hill does hold, and very properly, that individual schemes of profit or speculation are not legitimate items of damage; but nothing of that kind was claimed in the case of Wibert or in this case. The damages, as claimed by the plaintiffs, were predicated upon the general market value of the property, and its depreciation in the market at large, from the time it should be delivered till the time of the actual delivery. If the rule of damages in such cases as the present be not as stated by my brother Strong to the jury, on the trial of this cause, I am entirely at a loss to determine what it is, and the learned judge who gives the opinion in the case of Wibert has failed to lay down the true rule. If the learned judge had tried this cause at the circuit, I suppose he would have told the jury, assuming that the defendants had been guilty of negligence as claimed, that the plaintiff was only entitled to nominal damages. Confessedly from the neglect or default of the defendant in not delivering the butter within a *296reasonable time, according to his contract,'express or implied in law, the plaintiff had lost the opportunity to sell his property at the market price when it should have been delivered, and it had depreciated in value before it came to his hands. The learned judge holds that this is damnum absque injuria. I cannot agree with him. The principle which measures damages at ; common law is that of giving compensation for the injury sus-,1; tained—a compensation" which shall put the injured party in, the same position he would have stood in had he not been injured. (2 Parsons on Cont. 432. Go. Litt. 257, a.) Now within the principle here stated, of giving a compensation for the injury sustained—a compensation which shall put the injured party in the same position in which he would have stood had he not been injured—what other rule can be applied to make him whole and indemnified for the defendants’ breach of duty or default, but to hold him to make good the loss from the •depreciation of the property from the time it should have befen delivered till it was delivered ? This is a simple, plain rule, easily applied, and the only one which will afford a full indemnity. The learned judge who tried this cause at the circuit left the case to the jury, in a proper and judicious manner. He told them that the fall in the market between the times when the sheep should have arrived and when they did arrive, “ was a proper element of damagethat the loss resulting fropi the delay, by preventing the plaintiff from availing himself of the market, was a proper subject for their consideration in estimat- > ing the amount of damages. The jury were directed to take the whole subject into consideration and give such damages as were just, in view of all the facts of the case.
[Monroe General Term, September 1, 1856.The verdict was right, and a new trial should be denied.
T. R. Strong, Welles and Smith, Justices.]