I concur in granting a new trial, on the question of damages, on the ground that the defendants had no notice, when they received the goods, that an agent would be in waiting to receive them at Sachet’s Harbor; or that there was any special occasion or necessity for their prompt or immediate delivery. If any extra diligence was required or expected, of the defendants, in respect to the transmission or delivery of the seeds, they were entitled to notice of the special circumstances, before they could be liable for special damages. If the ■ special circumstances had been communicated to, or been known by, the defendants, at the time of the receipt of the goods, then the damages resulting from a breach of the defendants’ contract to deliver within a reasonable time might very properly be held to have been within the contemplation of the parties when the contract was made. (Hawley v. Baxendate, 9 Each. Rep. 341.) But I cannot concur in the opinion that the delay in the delivery of these seeds amounted to a conversion of them, or entitled the plaintiffs to recover the value thereof.
The seeds were received the 5th and arrived at Borne in the night of the 6th of December, and if they had been delivered the next day, December 7, to the Borne and Watertown Bail Boad Company, there could be no pretense of negligence in respect to their delivery. They were actually delivered to the Borne and Watertown Bail Boad Company on the 19th of the *522same month. This delay of twelve days was negligent, and entitled the plaintiffs to recover all the damages sustained thereby or by reason thereof, which were within the scope of damages naturally or reasonably consequent upon such delay— such as may reasonably be supposed within the contemplation of the parties—such as would ordinarily be incident to, or result from, such neglect) in the delivery of the property. But it did not amount to a conversion of the property; and, in my opinion) did not entitle the plaintiffs to recover the value of the goods. Mere delay in the delivery of property, by a carrier, is not a conversion, nor equivalent to a conversion. (6 Hill, 588. Angell on Carriers, § 431. Scovill v. Griffith, 2 Kernan, 518.) The defendants are common carriers, on the line of their road, but no further. When they had delivered these boxes, at Borne, to the Sachet’s Harbor and Watertown Bail Boad Company, their duty as common carriers was fulfilled. Such delivery was, in my opinion, equivalent to a delivery to the plaintiffs, who were bound to receive their property. (2 Kernan, 511. 22 Barb. 292.)
The delivery was made at Borne on the 19th of December, and this suit was commenced on the 20th of the same month, and when the property was on the way from Borne to Sachet’s Harbor, in the possession of the Borne and Watertown Bail Boad Company. No right of action, in my opinion, then existed, in behalf of the plaintiffs, in respect to such goods, except for the unreasonable and negligent delay of the defendants in their transportation and delivery: The defendants’ duty had been fully discharged, except in respect to this simple question of negligence. For that, and that only, could the plaintiffs, at that time, maintain any action. The fact that, at the trial, these goods were iujjthe possession of the defendants, I thinh, entirely immaterial! How such a fact came to be inserted in the case I cannot conceive. No such question was presented in the pleadings, or Was at issue on the trial or proper to be presented there, in any way, except to contradict the defendants’ evidence in respect to the delivery at Borne, or *523to satisfy the jury that the goods had never been sent forward from Eochester. This was not really pretended, and is in conflict with the conceded facts of the case.
Welles, J.The property in question, consisting of 72 boxes of garden and field seeds, marked “ Samuel Phillips, Sachet’s Harbor, if. ¥.” was delivered by the plaintiffs to the defendants on the 5th day of December, 1853, at the freight warehouse of the latter in Eochester, and the defendants at the same time gave a receipt for it, in which they agreed to forward the same according to such mark, but not to be responsible after the goods should be delivered at Eome. The case shows that the defendants were common carriers from Eochester to Eome, and that there were rail road communications between Eome and Sachet’s Harbor. By this agreement the defendants undertook, within a reasonable time, to carry the goods from Eochester to Eome, and there to ship them on board of a conveyance by which freight was usually conveyed from Eome to Sachet’s Harbor. When they should do that, their obligation would be discharged.
The case further shows that on the evening of the 6th of December, the next day after the goods were received by the defendants, they reached Eome in a freight train going east from Eochester to Albany. At Eome the goods were transferred to another freight train of the defendants, standing on the track between the running train and the defendants’ freight warehouse, for the purpose of having them removed in the morning to the warehouse. In the morning their removal was neglected, and they were taken to Albany, from which place they were returned to Eome on the 19th December, 1853, and were on the same day, at Eome, shipped on board the trains to Watertown. It also appears that on the 4th of December, 1853, and from that time to the 20th of the same month, Samuel Phillips, the plaintiffs’ agent engaged in the sale and distribution of garden seeds, was at Sacket’s Harbor, waiting the arrival there of the 72 boxes of seeds in question, for the *524purpose of distributing them about the country. That the said seeds not having arrived at Sachet’s Harbor on the 15th December, Phillips communicated with the plaintiffs at Rochester, by telegraph, on the subject, and that the plaintiffs, in consequence of the non-arrival of the first lot of seeds as directed, on the 16th December, delivered to the defendants, at Rochester, 71 boxes similar to and directed as the first lot, which reached Sachet’s Harbor on the 19th December, and were taken by Phillips, the next morning, (20th December,) who departed from Sachet’s Harbor with them on that day, prior to the arrival there of the first lot.
These facts show gross negligence on the part of the defendants. The plaintiffs were bound to have an agent at Sachet’s Harbor to receive the goods, a reasonable time after they were shipped at Rochester. This, the case shows, was done. Phillips was there for that purpose, waiting their arrival, from the 4th to the 20th of December, and when the goods arrived, he had left with other similar goods which the plaintiffs had shipped to him in consequence of the non-arrival of the goods in question. It does not appear that the goods were ever delivered, or offered to be delivered, by the defendants, to the plaintiffs or any agent of theirs, at any place, after the defendants received them, on the 5 th of December; but on the contrary, that at the time of the trial they were in the defendants’ warehouse at Rochester. When they arrived at Sachet’s Harbor, if they ever were sent there, the plaintiffs had no agent there to receive them, nor were they bound to have one. They had kept one there a reasonable time, treated the goods as lost, and withdrawn him: all this in consequence of the inexcusable delay of the defendants in the delivery of the property at Rome. As the facts stand proved, as shown by the case, the plaintiffs clearly had the right to abandon the property in question arid look to the defendants for its value. If they had returned the property to the plaintiffs, or offered to return it before the action was commenced, in as good *525condition as when received, they would not have been liable for its value. Their liability in that case would have been limited to the actual damages sustained by the plaintiffs by the negligence complained of. Probably the depreciation in their market value, together with such other actual damages as the plaintiffs may have sustained as the legal and direct consequences of the delay in the delivery, might have been recovered.
It is not necessary, in order to recover of a common carrier the value of goods delivered to him to be carried, that the facts should warrant an action such as would have been denominated an action of trover, before the names of actions were abolished; nor that the evidence should establish a conversion of the property by the carrier, to his own use. Suppose in this case the property had never been heard of at all after it was delivered to the defendants to be carried, &c. what, short of the value of the property, can be suggested as the measure of damages ? The case as actually proved, is no better for the defendants than that supposed. The plaintiffs rightfully treated the property as lost, and brought their action. That it had all the time remained in the defendants’ possession, not delivered or offered to be delivered, should not, in my opinion, go to diminish'the plaintiffs’ right of action, or their measure of damages. I desire to put this decision upon the particular circumstances of the case, and not upon the idea of a conversion by the defendants of the goods, which I do not think the evidence will warrant. The only question is the measure of the plaintiffs’ damages; which, under the facts proved and admitted on the trial, can be nothing short, in my opinion, of the value of the goods. Under the proof in the case, I think the plaintiffs were not entitled to recover for the dime and expenses of Phillips and the team, while waiting for the goods at Sacket’s Harbor. To prepare the way for such an item of damages, the defendants should have notice, at the time of the contract to carry and forward the goods, that an *526agent would be placed there with a team and wagon to receive the seeds.
[Monroe General Term, September 6, 1858.Welles, Smith and Johnson, Justices.]
The judgment should be reversed and a new trial ordered, with costs to abide the event.
Hew trial granted.