Mobile, Jackson & Kansas City Railroad v. Robbins Cotton Co. , 94 Miss. 351 ( 1908 )

Wiiitkibld, C. J.,

delivered the opinion of the court.

The appellee sued the appellant to recover the value of seventeen bales of cotton which it is alleged the appellant had failed to deliver to it according to its contract, manifested by bills of lading set out in the record. The testimony, we think, establishes sufficiently the failure to deliver the cotton sued for. The plaintiff attached to its declaration an exhibit, which is a bill of particulars, showing the various parties from whom it purchased the seventeen bales of cotton, the numbers of the bales of cotton, the places of shipment of the cotton along the line of the appellant’s railroad, the weights of the cotton, and the prices paid by the appellee for the cotton per pound, running all the way from seven and one-half cents to ten and one-fourth cents per pound, and the value of each bale of cotton; making in the aggregate the amount paid by appellee for the seventeen bales to be $798.66. Not a particle of proof was introduced on either side to show what the market value of the cotton was at the time of the purchase and shipment Not a witness was asked a question in relation to this market value of the cotton.

The plaintiff, whether inadvertently or not, wholly omitted to make this proof, and relies here upon the proposition that, since there is no other evidence in the record than the prices paid by the appellee, that is sufficient evidence of such market value, and the plaintiff obtained from the court the following instruction: “The court,,instructs the jury, for the plaintiff, that if they believe from the evidence that the plaintiff had delivered to the defendant railroad company, at the different stations named, the seventeen bales of cotton alleged to have been delivered for shipment, and that said cotton was not delivered to it, or to the compress company for it, and it did not receive said cotton from the railroad company, nor any other cotton in lieu thereof, the jury must find for the plaintiff, and assess the damage at the price paid by them for said cotton, and for the' freight paid the railroad company thereon, and six per cent, interest per annum on said amount from the date of said failure to so deliver said cotton.”

We cannot concur in the argument of appellee in support of this instruction. It is very easy to imagine a case, which might very readily occur, in which the purchaser of cotton might actually pay two or three times the market value of cotton in order to meet some contract of delivery of cotton, upon the meeting of which contract his credit and business entirely depended. Again, a purchaser might pay, being a bad judge of cotton, very much more for cotton than its market value. Manifestly, all that he could recover of the carrier for the failure to deliver would be, not what he might pay, but what the market value of the cotton was.

It follows that this first instruction is fatally erroneous, and for that reason the judgment must be reversed, and the cause remanded. Reversed.