(after stating the facts). It is contended here, first, that the court erred in its remark to the jury relative to the proper construction to be placed upon said instruction No. 2 and in stating that the consignee’s refusal to accept the peaches in their damaged condition would not be a bar to plaintiff’s right to recover, etc.
It is true, our court has said: “A common carrier is liable in damages for a negligent delay in the transportation of property, but the owner can not, on account of unreasonable delay in the delivery, refuse to receive the goods and sue as for a conversion.” Chicago, R. I. & P. Ry. Co. v. Neusch, 99 Ark. 568; Chicago, R. I. & P. Ry. Co. v. Pfeifer, 90 Ark. 524.
This suit, however, was not for a conversion of the car of peaches, but for damages for the destruction of same, in effect, by delay and failure to ice in transit, causing them to heat and rot and rendering them worthless, according to plaintiff’s contention, and the court correctly declared the law as to the measure of damages.
It is also true that the peaches were not entirely without value, as the consignee’s agent concluded they were in refusing to accept them when tendered by the delivering line, and that they in fact were sold by said carrier for one hundred and fifty dollars.
But, even if the refusal to accept had been wrongful, the carrier could not have abandoned the shipment, or converted it to its own use without liability therefor. Chicago, R. I. & P. Ry. Co. v. Pfeifer, 90 Ark. 524.
Recognizing its obligation, it sold the damaged shipment, realizing therefor one hundred and fifty dollars, and there is no proof indicating that said amount was not the value. The carrier was then bound to the payment of the difference of the value of the peaches at their point of destination, if they had arrived in a sound and marketable condition, and their value as they did reach the market in the damaged condition, and if plaintiff had been able to establish his contention that they were utterly worthless on arrival because of the carrier’s negligence, he would, of course, have recovered the entire market value. The peaches having been shown to be worth one hundred and fifty dollars, his damages were necessarily that amount less than the market value of the shipment at the place of destination and any expense the carrier reasonably incurred in the sale and disposition of the fruit, the one hundred and fifty dollars belonging to him the same as if he had sold the shipment therefor Because plaintiff failed to establish his contention that the shipment of peaches was damaged in its full value, as his agent concluded when he refused to accept them, it does not follow that he could not, on that account, recover the damage he did prove, and the construction placed upon said instruction No. 2 lay the attorney in his argument to ‘the jury that under it they could not find for the plaintiff at all, if he refused to accept the shipment in its damaged condition, unless it was entirely worthless, was wrong, and the court committed no error in its interruption of such argument in the remark made at the time and objected to here.
2. If it be considered that the provision in the bill of lading requiring claims for damages to be reported by the consignee in writing to the delivering line within 36 hours after he has been notified of the arrival of the freight at the place of delivery, and if such notice is not there given that none of the carriers shall be liable, is a reasonable regulation, we see no reason why it should not have been pleaded in defendant’s answer as a bar to plaintiff’s right to recover. In other words, if there was a contract limiting the railroad company’s liability, and it wished to avail itself of such a defense, it should have set it up in its answer. Kansas City, Pittsburg & Gulf Rd. Co. v. Pace, 69 Ark. 257.
The question could not be raised by a demurrer, which does not reach the exhibits attached to the pleadings in cases at law, and the demurrer was properly overruled. It having been in fact treated as raised and the case having been tried on that issue, we do not think the company can escape liability on account' of it. The delivering carrier had notice of the damaged condition of the shipment of peaches upon its arrival, its agent being present when an examination thereof was made by the agent of the consignee, who refused to accept the shipment on account of its damaged condition, and who also gave its said agent.a copy of the telegram advising consignor that the shipment of peaches was damaged in their total value, and that he refused to accept them on that account. The copy of the message, of course, was in writing, and was a sufficient compliance with the said provision.
3. The contract of shipment, the bill of lading, was made with appellee, R. C. Cumbie, as evidenced by said bill of lading, and he had the right to bring suit thereon. Cantwell v. Pacific Express Co., 58 Ark. 490; Kirby’s Digest, § 6008.
If others were wrongfully joined with him in said complaint, they could have been stricken therefrom upon motion of appellee; and if the demurrer be considered as such motion, and properly raised the question, and should have been sustained, its only effect would have been to permit the suit to proceed in the name of said consignor in the bill of lading, who was entitled to sue and recover the whole amount of the damages, and no harm could have resulted to appellant from the court’s action thereon.
The judgment in the whole case is right, and is affirmed.