concurring in result. The damages recoverable in an action for a breach of contract are such as naturally flow from the breach and such special and consequential damages as are reasonably presumed to have been within the contemplation of the parties at the time the contract was entered into. Williams v. Telegraph Co., 136 N. C., 82; Johnson v. R. R., 140 N. C., 574. And the same rule is applied in actions for the *156negligent omission in tbe performance of a public duty growing out of contract. Lee v. R. R., 136 N. C., 533, delay in transportation of freight; Williams v. Telegraph Co., 136 N. C., 82, negligence in transmitting and delivering message; Hansley v. R. R., 115 N. C., 602, delay in carrying passenger. But a different rule is applicable when the cause of action is based upon a pure tort resulting in a wrongful invasion of plaintiff’s rights of person or property. Then he may recover all such' damages either direct or consequential, as flow naturally and proximately from the trespass. Johnson v. R. R., supra; Gwaltney v. Timber Co., 115 N. C., 579; Hatchell v. Kimbrough, 49 N. C., 163.
In an action based upon such a tort, reasonable foresight is essential to original liability, but it has no place in determining to what consequences the liability shall attach. Drum v. Miller, 135 N. C., 204.
In Lewark v. R. R., 137 N. C., 383, an action for damages resulting from delay in transportation, this Court states the rule to be: “When one violates his contract he is liable for such damages as are caused by the breach, or such damages, as being incidental to the breach as the natural consequence thereof, may have been in contemplation of the joarties when the contract was made.” In Development Co. v. R. R., 147 N. C., 503, Mr. Justice Holte says: “Consequential damages are only recoverable when they are the natural and probable consequences of the carrier’s default. And ordinarily such damages are only considered natural and probable when they may be reasonably supposed to have been in contemplation of the parties at the time the contract was made.” This was said in an action for negligent delay in transjwrtation of freight, which was treated by the learned judge as a breach of contract, or tort growing out of contract, as was done in Lee’s case, in Ijewarlc’s case and numerous other cases decided by this Court.
The error in the opinion of the^court in the present case, I think, is in assuming that notice by the plaintiff of the particular damages and subsequent delay created a liability independent of the contract entered into by Gurganus and the defendant. The plaintiff’s right to sue is determined upon prin*157ciples of tbe law of agency in tbe creation of a contract, and yet it is suggested by tbe court tbat tbe damages should be assessed upon tbe basis of a pure tort resulting from tbe breach of an independent duty owed plaintiff. Plaintiff’s rights having grown out of tbe contract, tbe amount of damages recoverable should be determined by tbe rule laid down by this Court in actions based upon tort growing out of contract. Applying tbat rule plaintiff could only recover such damages as were in tbe contemplation of tbe parties at tbe time tbe contract was entered into. All tbe cases since Hadley v. Baxendale fix tbe time tbe contract was made as tbe time when notice of special damages should be given. Lee v. R. R., and cases cited supra. In Hansley v. R. R., 115 N. C., 602, which by express terms overrules Purcell v. R. R., 108 N. C., 414, quoted in the Court’s opinion in this case, it is held tbat: “Tbe amount recoverable for a breach of contract of carriage is limited to tbe damage supposed to have been in contemplation of tbe parties and actually caused by such breach; and tbe measure of damage is ordinarily not materially different whether tbe defendant fails to comply with tbe contract through inability or wilfully disregards it.” And this is said by tbe Court, in tbat case, to be tbe rule whether tbe passenger sues for a breach of contract or in tort for tbe disregard of tbe duty of tbe carrier to tbe public. Tbe result reached in Purcell v. R. R., was subsequently approved in Hansley v. R. R., 117 N. C., 565, on petition to rehear. “But tbe judgment in tbat case,” says tbe Court, “should be put upon tbe ground tbat tbe defendant treated Purcell with indignity and contempt in rushing by tbe station at faster speed, when there was room for tbe passengers, or at least when there was evidence tending to show this.”
Tbe former decision in tbe Hansley case, tbat for negligent failure to transport a passenger to bis destination, tbe passenger’s right of action is ex contractu and not in tort, is affirmed.
In Kennon v. Telegraph Co., 126 N. C., 232, tbe present Ghief Justice says: “It is immaterial under our system of practice whether tbe action is in tort for tbe negligence in tbe discharge of a public duty or for breach of contract for prompt delivery, for tbe recovery in either case is compensation for tbe *158injury done tbe plaintiff and which was reasonably in contemplation of the parties as the natural result of the breach of the contract or default in discharging the duty undertaken.”
The plaintiff’s action in this case, being based upon breach of contract or tort growing out of contract, and the damages being restricted to such as were in the contemplation of the parties when the contract was made, the evidence of notice of special damages was properly excluded. Such notice cannot affect the liability of the parties after the performance of the contract has been entered upon. But if such evidence is admitted the sainé result must follow, because it would be the duty of the court to instruct the jury that the notice given was insufficient to charge the defendant with liability for special damages. Where the testimony with regard to notice is .uncontradicted and is clear and distinct, the question of the sufficiency of the notice is for the court. R. R. v. Johnson & Fleming, 94 S. W. (Tenn.), 600.
“It may be stated as the well settled rule,” says Hutchinson on Carriers, sec. 1367, “that special damages can be recovered from the carrier when the transportation has been delayed only where it is shown that the shipper informed the carrier, at the time the contract was made, of the special circumstances requiring expedition in shipment. And although the carrier may have been notified of such special circumstances in time to have prevented a delay, if such notice was given after the contract of transportation had been entered upon, it would not operate to modify the contract or subject the carrier to liability for special damages arising from a subsequent delay. The fact that the carrier was notified of the special circumstances demanding greater diligence is thus seen to be a crucial one, and that the carrier was so informed must be alleged and proved.”
“Notice to a carrier, after goods have been shipped, of circumstances which render special damages a probable result of a delay in their delivery, does not operate to modify the original contract so as to render the carrier liable for such damages, even in the event of a subsequent unreasonable delay.” Bradley v. R. R., 94 Wis., 44.
In R. R. v. Johnson & Fleming, 94 S. W., 600, Chief Justice Beard, of the Supreme Court of Tennessee, says: “Notice to the *159carrier, after goods bare been shipped, of circumstances which render special damages a probable consequence of delay, does not affect the original contract so as to render the carrier liable, although the subsequent delay is unreasonable.” Upon facts similar to those presented in our case, the Wisconsin Court, in Bradley v. R. R., supra, says: “It is only necessary to apply a familiar principle of law in order to answer these questions. No principle of law is more firmly established than that actual damages for a breach of contract are limited to such as may be reasonably considered to have been in contemplation by the parties at the time of such contract, as the probable result of a breach of it. Such principle rules this case unless there is some exception thereto which will fit the special circumstances found by the jury and expressed in the questions submitted. That was obviously the view the learned circuit judge took of the matter; hence the necessity for the second question, i. e., did notice to the appellant of the circumstances which rendered the damages found by the jury a probable result of the late delivery operate to modify the original contract between the parties so as to make the appellant liable in damages? Counsel for the respondent failed to bring to our attention any authority to sustain such exception to the general rule, and, indeed, we are satisfied that none can be found, and that the exigency of this particular case is not sufficiently serious and pressing to warrant us in disturbing the settled law regarding the subject, as counsel suggests that we should do.”
The case of Bourland v. R. R., 99 Texas, 407, is not authority for the position suggested in the opinion of the Court. It is held in that case that where notice of such circumstances as will occasion special damages is given the carrier after the contract to carry has been performed, and after the goods have accordingly arrived at their destination and are ready to be delivered, he will be liable for such special damages if he negligently fails to make delivery of the goods. In* this case the Supreme Court of Texas accepts the decision in R. R. v. Belcher, 89 Texas, 428, as containing a correct statement of the law upon the question of liability for special damages where notice is given after the contract has been made and transportation commenced, but *160before the shipment reaches destination. In the Belcher case it is held that such notice is insufficient to charge the carrier with special damages. Justice Williams, writing the opinion in Bourland v. R. R., adverts to the suggestion made by Baron Bramwell, in Gee v. R. R., 6 H. & N., 217, referred to in the opinion of the Court and says: “The decisions have been to the contrary in cases of this character which have come to our attention, where it became necessary to pass upon the point.” This dictum in the Gee case is referred to in section 158 of Sedgewick’s work on Damages, and after quoting the language of Baron Bramwell, the author says: “The majority of the Court, however, took a different view. And, however reasonable the view may be in itself, another rule is firmly established. Hadley v. Baxendale, as we have seen, held that damages for breach of contract were limited to such as were either normal or communicated at the time of the contract.” Sedgewick further says, see. 159: “Notice must form the basis of a contract. It appears that the notice must be more than knowledge on the defendant’s part of the special circumstances. It must be of such a nature that the contract was to some extent based upon the special circumstances. This appears from the language of the courts in many cases where the subject is discussed. In Smeed v. Foord, Campbell, C. J., doubted whether notice could have any effect in changing the rule of damages, unless it formed part of the contract. In British Columbia S. M. Co. v. Nettleship, Willes, J., said: “The mere fact of knowledge cannot increase the liability. The knowledge must be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it.” In Booth v. Spuyten Duyvil R. M. Co., Church, C. J., stated, as his opinion, that notice of the object of the contract would not, of itself, change the measure of damages, “unless it formed the basis of an agreement.” Proof of notice, of course, cannot be received to vary the contract, which always speaks for itself; it is merely an attendant circumstance, which, like any other matter in evidence, affects the consequences of the breach and the measure of recovery.
*161Hadley v. Baxendale lays no stress on tbe question whether the contract was founded upon or influenced by the notice; but the weight of recent authority seems to be in accordance with these opinions, to the effect that the notice must be such as that the contract was in some degree founded on it. The defendant sold goods to rig a vessel, and damages wore claimed for loss of use of the vessel. The Supreme Court of Michigan said: “To create such extraordinary liability, there must in every case be something in the terms of the contract, read in the light of the surrounding circumstances, which show an intention on the part of the vendor to assume an enlarged engagement, a wider responsibility than is assumed by the vendor in ordinary contracts for the sale and delivery of merchandise.”
In this case the defendant is notified, after entering upon the performance of the contract, that the special damages would result, and was for the first time notified that such damages would result to a company whose name nowhere appears in the contract of shipment and whose existence was probably unknown to the defendant. If such notice is sufficient to charge the defendant with liability for special damages, then the great case of Hadley v. Baxendale has power only to vex unsuspecting parties who regard its principles as established and enforcible in our courts.
The facts are not sufficient to bring this case within the decision of Lumber Co. v. R. R., 151 N. C., 23, and other cases in this Court, charging the carrier with special damages for delay upon the ground that the character and circumstances of shipment were sufficient to give notice of such damages. There was nothing about this shipment to give the defendant the slightest intimation that the plaintiff company intended to conduct a peanut-cleaning business, and had employed hands to install and operate the machinery and had rented a house for that purpose. It was reasonable for the defendant to suppose that Gurganus was receiving the machinery for sale to another party, or that he was receiving it as agent for the shippers. In fact the purpose for which the shipment was intended was a pure matter of conjecture to the defendant.
*162The Lumber Company case presented tbe following combination of facts wbicb this Court said was sufficient to go to the jury upon the question of notice of special damages: (1) Plaintiffs name, indicating the character of business engaged in by it ; (2) the nature of the article shipped, to-wit, an edger, a machine used by saw mills, weighing about 1,000 pounds, indicating an article not of general use, but for particular purpose; (3) that the machine was shipped unboxed, uncovered and open, and thus observable by the defendant; (4) being a single machine, indicating that it was intended to be used in conjunction with other machinery; (5) the destination, being a section in which lumber was manufactured. A mere enumeration of these conditions destroys that case as an authority upon which to submit to the jury the question of special damages in this ease.
For wrongful delay in the transportation of goods having a market value the damages usually supposed to be in contemplation of the parties is the difference in value of the goods at the time when they should have been delivered and when they were delivered. In the absence of appreciable loss, the interest on the money invested in the goods themselves for the time of the delay would be the correct measure. Lee v. R. R., 136 N. C., 533; Development Co. v. R. R., 147 N. C., 503. If the jury should find in this case that the plaintiff has been injured by the negligence of the defendant, the measure'of damages should be fixed by the principle of these cases. Upon the evidence as now presented the plaintiff is not entitled to special damages. However, his Honor was in error in instructing the jury that the plaintiff could recover only nominal damages, for which there should be a new trial.
Walker, I., concurs in this opinion.