fendant filed a motion for a new trial, which was overruled, and he saved exceptions and appealed. WHAT IS PROP DAMAGES. We consider it unnecessary to notice any question in the case except that as to the measure of damages. In cases like this, where goods have been delivered to a common carrier for transportation, and were not delivered at their destination within a time specified in the contract, or, if no time was specified, ER MEASURE OF Within a reasonable time, the damages recoverable on account of the delay, if goods of the particular kind shipped have fallen in market value during the delay, as a general rule, is the difference between the value of the goods at the time and place they should have been delivered, and their value when they were in fact delivered, with interest, after deducting the unpaid cost of transportation; the value at the time when they were in fact delivered being computed at the place of destination. St. Lonis, I. M. & S. R. v. Phelps, 46 Ark. 485; 3 Suth. Dam. 216, 218. The theory of the rule is this: "Where there is a negli gent delay in transportation, the thing which the owner does not receive, when he is entitled to it, is goods of their value at that time. The thing which he afterward receives is goods of a value at a different time, which is not necessarily the same value. . . . If the market value of the goods is less when they are actually delivered than it was when they ought to have been delivered, the fall in the market value is not a cause, but an incident or consequence, of the diminution in the intrinsic or merchantable value of the goods, and evidence of the injury which the owner has suffered by the wrongful act of the carrier ;" and the diminution in the market value is a real and actual loss of a portion of the real and intrinsic value, as much as a change for the worse in the quality of the goods. When the parties entered into the contract of shipment, it is presumed that they had in contemplation this loss as the probable result of the breach of it, and contracted with reference to it. Hence the law imposes on the carrier the duty to pay it as a compensation for the injury he has done by the failure to perform his contract. 3 Suth. Dam. 218; Hadley v. Baxendale, 9 Exch. 341. But there may be special circumstances under which the application of this rule would be unjust; as where the owner of the goods had made an advantageous sale of them, provided they were delivered within a certain time, and delivers them to a carrier to be transported to the place of delivery, and the carrier through negligence fails to deliver them at their destination in time, and the owner loses the benefit of his bargain. In this case, if the carrier was informed of the sale and its conditions, and the market value of the goods when and where they should have been delivered was less than the contract price, the result of the breach of the carrier's contract, which both parties would reasonably contemplate and contract in reference to, and for which the carrier would be liable, would be what the owner would lose by the failure to deliver in time, and that would be the difference between the contract price and the market value of the goods when delivered. But, on the other hand, if these special circumstances were wholly unknown to the carrier, the measure of damages would be as first stated. 3 Suth. Dam.. 228; Simpson v. London & N. W. Ry. Co., 1 Q. B. Div. 274; Hadley v. Baxendale, 9 Exch. 341; Vicksburgh, etc., R. Co. v. Ragsdale, 46 Miss. 458; Gee v. Lancashire & Y. R. Co.; 6 Hurl. & N. 211; Baldwin v. United States Tel. Co., 45 N. Y. 744; Deming v. Railroad Co., 48 N. H. 455; Sisson v. Cleveland & T. R. Co., 14 Mich. 489. SHIPPER NOT EN TITLED TO DAMI GOODS. Appellee testified that he went to Texarkana 15 or 20 times to inquire about these machines, and lost much time by reason thereof. He is not entitled to any damages on that account. The goods had been shipped from Texarkana to Cincinnati, and Texarkana was not the place. to look for them. There was no necessity for incurring such loss. Such damage is not direct, but remote and contingent. Ingledew v. Northern R. 7 Gray, 86; Mississippi R. Co. v. Kennedy, 41 Miss. 679; Woodger v. Great W. R. Co., L. R. 2 C. P. 318. For the errors indicated, the judgment of the court below is reversed, and this cause is remanded, with instructions to the court to grant appellant a new trial. Measure of Damages for Delay in the Carriage of Goods. See Schulze v. Great Eastern R. Co., and note, 30 Am. & Eng. R. R. Cas. 134. In an action for damages against an express company for delay in the shipment of a piece of machinery, necessary to the operation of the plaintiff's mill, the jury, in estimating the damages, may, under proper obligations and proof, consider the loss of time, the expense of idle hands, the contracts which the plaintiff had to fill, and the profits arising from the operation of the mill. The fact that the machinery was delayed for four months at the place where it had been sent for repairs, does not preclude the plaintiff's right to recover. An amendment to a petition in an action for damages against an express company for negligently delaying the shipment of a piece of machinery, in which it is alleged that the defendant's agent had notice that the operation of the defendant's mill would be suspended until the machinery should be returned, does not state a new cause of action, but merely perfects the cause of action already definitely stated. A carrier cannot require a shipper who sustains a loss to give notice of his claim within a short period of the date of the bill of lading without reference to the time of the loss. FACTS. GAINES, J.-This suit was brought by appellees against appellant in the county court of Van Zandt county, and was transferred to the district court. It was before this court on a former appeal (62 Tex. 639,) and was reversed because the court permitted the plaintiffs to prove that they informed defendant's agent when the cylinder was delivered that their mill was idle for the want of it, and that they were in a hurry to get it to Baltimore to have it repaired, there being no allegation in the petition to authorize the introduction of the evidence. The case having been remanded, plaintiffs amended, averring in effect that the company's agent was notified at the time of the delivery of the cylinder for shipment that they were operating a saw and grist mill; that they were sending it to Baltimore for repairs, and that their mill would remain suspended until it was repaired and returned. Plaintiffs recovered a judgment, and defendant again appeals, assigning errors in the giving and refusal of instructions by the court. The petitioners alleged also that defendant negli gently delayed the shipment of the cylinder for 14 days after it was placed in the possession of its agent for transportation, and set forth their damages, consisting in the loss of the services of themselves, their employees, wagons, and teams by reason of their being unemployed for that length of time, and in the loss of profits on their mills. The value of the services were specifically alleged. The value of the probable products of the mills during the time was also averred, together with the expense of its operation. Plaintiffs adduced evidence upon the trial tending to establish the facts as so alleged. The court charged the jury as follows: "In estimating the damages plaintiffs have sustained, you will take into consideration the loss of time, the expense of idle hands, the contracts plaintiffs had for lumber, the corn plainFOR tiffs got to grind, and the profits arising from running and operating the steam-mill, and multiplying the amount per day by the number of days would give the amount plaintiffs would be entitled to, not to include Sundays." It is now insisted that this charge was erroneous, and counsel submit this proposition in support of their assignment: "The damages which MEASURE DELAY. OF a party may recover on the breach of a contract are those which are incidental to and caused by the breach, and may reasonably be supposed to have entered into the contemplation of the parties at the making of the contract." The proposition is sound; but it is manifest to us that if defendant's agent knew that plaintiffs had a grist and saw mill, and that its operation would be suspended until the cylinder returned (and it is not denied that this was averred and proved), then it should reasonably have been expected that for every day the shipment of the cylinder was delayed the plaintiffs would incur a loss for their own services, and that of their employees and teams, as well as in the profits of their business. The profits were definitely shown, by averment and proof, and were not speculative; and in our opinion were properly taken into account as elements of damage. They were capable of being ascertained with reasonable certainty from the pleadings and proof, and this fulfilled the requirements of the law in such cases. DELAY. OTHER It was proved, however, that after the cylinder was shipped it was four months until it was returned to plaintiffs, and their mill again set in operation; and it is claimed that, by SAME reason of the delay in Baltimore, it does not appear that any damage naturally and directly resulted to plaintiffs from the breach of the contract. It is, however, reasonable to presume, in the absence of any proof to the contrary, that but for defendant's neglect in making the shipment the mill would have been put in operation two weeks earlier than the time when the business was, in fact, resumed; therefore a loss of two weeks appears a natural and proximate result of defendant's delay. If defendant had shown that other circumstances intervened which would have caused the same time to elapse before its return, even had the agent forwarded the cylinder promptly, it would have been a very different case. But no attempt was made to make such proof. The third error assigned is as follows: "The court erred in charging the jury that they could not consider the question of limitation." Under this assignment, it is contended • PLEADING AMENDMENT. that the allegations in the amended petition, that defendant's agent had notice that the operation of plaintiffs' mill would be suspended until they received back the cylinder, state a new cause of action, and that therefore that statute of limitations ran until the amended petition was filed. But we regard the amendment merely as perfecting the statement of a cause of action defectively stated, and not the setting up of a new one. The allegation of new elements of damage, or the more perfect averments of elements of damage faultily alleged, do not make a a new cause. Rowland v. Murphy, 66 Tex. 534; Railway Co. v. Davidson, 4 S. W. Rep. 636; Railroad Co. v. Irvine, 64 Tex. 533; s. c., 23 Am. & Eng R. R. Cas. 518. 32 A. & E. R. Cas.-35 LIMITATION UP ON MENT OF CLAIM. The fourth error assigned is as follows: "The court erred in charging the jury that they could not consider the PRESENT limitation of sixty days contained in the written contract made by the parties at the time of the delivery of the cylinder for shipment." The contract for shipment of the cylinder contained this clause: "And it is further agreed that the said Pacific Express Co. shall not be held liable for any claim of whatsoever nature arising from this contract, unless such claim shall be presented in writing within sixty days from the date hereof." The court, in effect, charged the jury that this was not a bar to plaintiffs' recovery; and refused a counter charge asked by defendant. In this there was no error. The contract, being from a shipment beyond the State, does not come under the operation of our statute which prohibits a common carrier from limiting its liability at common law. Any reasonable limitation contained in the bill of lading would be upheld by the court. But it has been decided by this court that an unreasonable restriction is not valid, even in cases to which our statute does not apply. Railroad Co. v. Harris, 67 Tex. 166. Is this a reasonable limitation? We think not. If it had been stipulated that a claim should be made in 60 days from the ascertainment of the loss the case would have been different. But to require a shipper to give notice of his claim within a short period of the date of the bill of lading, without reference to the time when a loss for the breach of the contract accrued, is to impose a restriction which in many cases would deny a right of action, and thereby permit the carrier to contract against his negligence, which is never allowed. We find no error in the judgment, and it will be affirmed. See St. Louis, etc., R. Co. v. Mudford, and note, ante. Validity of Stipulations Limiting Time within which Claims for Damages Sustained in Carriage must be Presented What is Reasonable Time. — Agreements that in case of failure by the carrier to deliver goods, and for injuries received in their carriage, he shall not be liable, unless a claim shall be made by the bailor or by the consignee within a specified period, if that period be a reasonable one, has been very generally upheld by the courts as not being against the policy of the law. The question as to what is a reasonable time in such cases has been passed upon in a number of decisions. In Southern Express Co. v. Caldwell, 21 Wall. (U. S.) 264, a stipulation that the carrier should not be held liable for any loss of, or damage to, certain goods received for carriage, unless claim was made therefore within ninety days from the date of delivery to it was held valid, Justice Strong saying: “Our conclusion, then, founded upon the analogous decisions of the court as well as upon sound reason, is that the express agreement between the parties averred in the plea was a reasonable one, and hence that it was not against the policy of the law. It purported to relieve the defendants from no part of the obligations of a common carrier. They were bound to the same diligence, fidelity, and care as they would have been required to exercise if no such agreement had been made. All that the stipulation required was that the |