Proctor v. Eastern Railroad , 105 Mass. 512 ( 1870 )

Morton, J.

The defendants agreed to convey the merchandise of the plaintiff over their road to Boston, and there deliver it to the Merchants’ Express, a line of transportation from Boston to the West. They admit this in their answer. By their contract, they were to act as common carriers and forwarding agents. Darling v. Boston & Worcester Railroad Co. 11 Allen, 295. Instead of delivering the merchandise to the Merchants’ Express, they delivered it to the Old Colony and Newport Railway Company, by which it was transported to New York, and thence by other carriers to its place of destination, at a cost to the plaintiff much greater than the expense of its transportation would have been if it had been forwarded by the Merchants’ Express. The mere statement of the case shows that the defendants failed to perform their contract, to the damage of the plaintiff; and it is clear that the plaintiff is entitled to recover the damages sustained by him by reason of such breach.

The facts that Mr. Kenney, an agent of the defendants, had never heard of the Merchants’ Express line from Boston, and that he made' inquiries of several persons and did not learn of the existence of this line, furnish no justification to the defendants; and evidence thereof was properly excluded by the court.

Judgment on the verdict for the plaintiff.