Eiswald v. Southern Express Co. , 60 Ga. 496 ( 1878 )

Bleckley, Judge.

The basis of the action was contract, and an alleged breach thereof. The express company undertook to carry and deliver a check drawn upon a bank by a depositor in favor of his wife ; and delivery to the wife was not made, it is contended, as early as it ought to have been made. In the mean time the bank failed and the depositor’s money was lost. The verdict was for the defendant, and the court refused to grant a new trial. Under the evidence, the presiding judge believed, no doubt, that the failure of the bank took place before a reasonable time for delivery had expired, and that the plaintiff’s money was thus really lost while the express company was not in default; that the default of the latter, if any, by undue delay in making delivery, was unattended with any actual damage to the plaintiff. The evidence would very well warrant such a conclusion; so that, admitting that the duty of the company was to deliver at the residence of the consignee, according to the street and number designated in the address of the package, (a question we need not decide,) the plaintiff probably had a cause of action for nothing beyond nominal damages. In actions of tort, or in some of them, because the mere branding of the defendant’s act as a wrong may be of future consequence to the plaintiff in the matter of upholding the right involved, a new trial will be granted on the disallowance of nominal damages where such damages ought to have been found; but this strictness does not prevail in cases of contract, the same reason not applying.

At all events, in this class of cases a reviewing court will not constrain the primary court to grant a new trial in order that mere nominal damages may be recovered.

Cited in the argument: Red. on Railways, 32; Ang. on Carriers, §§287, (n) 291, 295, et seq : Brown on Carriers, 195, 199, et seq; 2 Kent’s Com., 604; Ad. on Cont., 500, 501; 17 Wend., 305; 6 Bosw., 235; Code, §2946; 4 Ga., 264; 18 Ib., 539, et seq; Code, §§2066, 2062, 2060, 2080 ; 45 Ga., 309; 46 Ib., 307; Code, §2070; 37 Ga., 693; 46 Ib., 433; 17 Wall., 357; 15 Minn., 270; 23 Am. Law Reg., 39; 9 Am. Law. Review, 155; 2 Gr’l’fsEv., p. 194, notes; Code, §3065; Sedgw. Meas. Dam., 55, 56; 22 Vt., 231; 5 Ind., 250; 6 Rich. Law, 75; Code, §3678.

Judgment affirmed.