1. Common carrier: measure of damages. The court charged the jury that if, under the law and the evidence, they found for the plaintiff, they wou^d, in assessing his damages, observe the following rules :
They must find, from the evidence, the price of wheat at Council Bluffs on or about the 6th day of April. 2d. They must find, from the evidence, the price of grain in St. Louis, on or about the 6th day of April.
3d. They must take the difference in the price of wheat at Council Bluffs and the price at St. Louis; from this difference deduct the agreed price of carriage; and the balance will be the damage due the plaintiff.
The defendant’s counsel concedes that the above rules are correct, in cases where the carrier actually receives the article to be transported, and fails to deliver the same at the place of destination; but he claims that where, as in the case at bar, the carrier fails or refuses to receive the article, and never does receive it, the above rules have no application, and that, in the latter case, the carrier is liable in damages only for the advance in the price of transportation.
The verdict establishes the existence of the contract — a contract by the defendant directly, without intermediate agencies or boats — to deliver the grain, an article having a market value, at the place of destination. It is not shown that the grain, if it had been received according to the contract of affreightment, would not have reached without delay, or in^safety, the port of delivery. A market via the river, we may properly notice, is, at least for a large portion of the way, the only one open to shippers and owners of grain at Council Bluffs. It does not appear but that the violation of the contract by the defendant was willful. Under these circumstances, we are clear that the rule of damage laid down by his honor, the district judge, was correct; and that ruling is affirmed-
*512It is proper to observe, that, aside from the special circumstances, the rule adopted is in exact accord with the doctrine established by the Supreme Court of New York (Brackett v. McNair, 14 Johns., 170 [1817], with which Ogden v. Marshall, 4 Seld., 340 [1853], does not conflict); by the Supreme Court of Pennsylvania (O'Oonnor v. Foster, 10 Watts, 418); and approved in the text of Sedgwick on Damages (marg., 356, 358, top, 3d ed., 372, 374), and of Angell on Carriers (§ 482, et seq.); but see reviewing cases, Lakeman v. Grinned, 5 Bosw. (N. Y.), 625, and conflicting cases in 22 Barb., 278, and 29 Id., 633.
2. - general rules and special cases. The defendant did not show, at least so far as disclosed by the record, that, by the exercise of ordinary care, the plaintiff could have obtained or found another conveyance. Had this been established, the rule contended for by the defendants (measuring and limiting the damages by the advance in the freight, unless other damages are shown), would, under the above authorities, have been the proper one. These are the general rules. But these are not inflexible; and the measure of damages against carriers is liable to be varied, as an examination of the adjudicated cases will show, by special circumstances, the object being to do justice, and to afford full compensation, and no more, to the party injured. Again, the defendant objects to the charge, because it instructs the jury to find the value of the wheat on a fixed day. The complaint is, that the day on which the boat would arrive, would be for the jury to find. Strictly speaking, this is so; but, under the pleadings, and in the absence of Evidence, we cannot, on this objection, reverse the judgment.
3. Presumptions: instructions. The presumption is in favor of the correctness of the charge. It may have been a conceded fact on the trial, that the boat which should have taken the plaintiff’s grain did, in fact, reach St. Louis on the day named in the instructions. The evidence, if here, *513would, doubtless, show — at least, the appellate court must so presume — that the action of the court below, in naming a day certain, was not unauthorized. Affirmed.
Cole, J., having been of counsel, took no part in the decision.