Southern Railway Co. v. Moody , 151 Ala. 374 ( 1907 )

McCLELLAN, J

The appellee sued the appellant, a common carrier, adopting the code form (No. 15), for damages for the failure to deliver the appellee, as consignee, a number of egg cases. The original complaint in the justice’s court alleged the property not delivered to be 200 egg cases, and the complaint in the circuit court 20 egg cases. This variance is not available here, if, indeed, it is objectionable at all on appeal to the circuit court, where the trial is de novo.

The testimony shows Avithont conflict that a feAV days —in one aspect, one day — after the snit was instituted the appellant’s local agent offered to deliver the property in question to appellee upon his payment of the freight charges, and that appellee declined to accept the articles or to pay the charges. So it is insisted that there is a fatal variance between the allegata of failure to deliver and the probata, which shoAvs delay in delivering merely. The point is Avell taken. The complaint, in the form stated, is for the breach, in its entirety, of the contract to deliver, and the proof makes a case of unreasonable delay in delivery; the measure of recovery in the former event being the value of the property not delivered, Avhile in the latter the recoverable damage is limited to that proximately resulting to the aggrieAmd party by reason of the unreasonable delay, and not inclusive of the total value of the goods delayed unreasonably' in delivery. The refusal of the appellee to accept the property upon payment of the charges was unwarranted, and the circuit court erred in rendering its judgment for the total value of the property. — S. & N. Ala. R. R. v. Wilson, 78 Ala. 587; A. G. S. R. R. Co. v. Grabfelder, 83 Ala. 200, 3 South. 432; R. R. Co. v. Montmollen 145 Ala. 468, 39 South. 820.

Tile complaint must be amended to conform to the testimony ; and it may not be amiss to observe greater care in the description in the complaint of the property consigned, not only as in fact it was, but as it appears in the bill of lading. Two counts will, in this case, accomplish' this purpose.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson; C. J., and Dowdell and Anderson, JJ., concur.