dissenting.
This was an action brought by the plaintiff against the defendant, to recover damages for the loss and detention of cotton shipped by the plaintiff on the defendant’s road, on or about the 5th of November, 1865, on the faith of, and in consequence of the following letter,'written to N. G. Bayard, at Rome, Georgia, by A. A. Talmadge, Superintendent of the East Tennessee and Georgia Railroad:
“ East Tennessee and Georgia Railroad Company,
Superintendent’s Oeeioe,
“ Chattanooga, October, 25th, 1865.
“ N. G. Bayard, Rome, Georgia:
“ Dear Sir : — Yours of the 21st came duly to hand. In reply, I will say, that arrangements are perfected for *288sending cotton through to New York via East Tennessee and Georgia and connecting lines to Alexandria by rail, without detention, and with less transfers than any other line. There are three regular lines of steamers running from Alexandria to New York, so that there will not be any detention at that point. Our rate from Dalton to New York on cotton is $9 00 per bale. Hoping to secure a liberal share of business from Rome. I am, very respectfully, your obedient servant, A. A. Talmage, Superintendent.”
This letter was shown to the plaintiff before shipping his cotton from Rome, so as to reach the defendant’s road, over which it was intended to go, and was received by the defendant on its road, to be transported to New York. There is no dispute that the cotton was detained on the route between Dalton and New York, or as to the inability of that line of road to transport cotton over it without detention and delay. The plaintiff’s damages are clearly proved by the evidence, resulting from the detention of the cotton on the line of road between Dalton and New York, and the verdict of the jury is just and reasonable, under the evidence. But the defendant contends that he is not liable beyond the terminus of his own road, under his contract and undertaking in this case, for the detention of the cotton, which occurred on the line of road between Dalton and New York, in consequence of the defective means of transportation on that line of road. What is the fair and legal construction to be given to the defendant’s letter, written to induce the shippers of cotton at Rome, Georgia, to send their cotton over his road ? It was an undertaking on his part that his road would ship cotton to New York, the point of destination, either by its own company or competent agents, for $9 00 per bale, without detention, which was an important consideration to shippers, in view of the condition of the various lines of railroad at that time. The defendant knew, when he wrote that letter, that parties shipping cotton from Rome, to be shipped over his road, would forward it over the Rome and West*289ern and Atlantic roads, to be shipped over his road to New York, and it was to induce them to do so that the letter was written. Contracts implied by law are such as reason and justice dictate, and which, therefore, the law presumes that every man has contracted to perform ; and upon this presumption, makes him answerable to such persons as suffer by his non-performance: 3 Blacks tone’s Commentaries, 154. The undertaking of the defendant in his letter was, that if the shippers of cotton at Rome would ship it over his road to New York, he had perfected arrangements for sending cotton through to New York via East Tennessee and Georgia and connecting lines to Alexandria by rail, without detention, and from thence to New York by steamers, at the rate of $9 00 per bale from Dalton to New York. Having failed to perform this undertaking, the law makes him answerable to the plaintiff for the damages he has sustained by his non-performance of it. In the absence of any express contract to that effect with the plaintiff, the law will imply one from his letter, and from the fact that the plaintiff did ship his cotton over the defendant’s road to New York at the rate of $9 00 per bale, in pursuance of the terms of that letter, and which he undertook to safely deliver at the point of destination, without any unreasonable detention, either by himself hr his competent agents, with whom he said he had made arrangements for that purpose. To allow the defendant now to repudiate that undertaking would be a fraud on the plaintiff, who shipped his cotton over the defendant’s road, on the faith of it. I am, therefore, of the opinion that the judgment of the Court below in this case should be affirmed.