The plaintiff’s counsel asked His Honor to instruct the jury, that “if plaintiff, before defendant, received the tobacco, instructed defendant’s agent at the Charlotte depot, not to ship on defendant’s road to Columbia, until ordered to do so, by plaintiff, and defendant’s agent did ship the tobacco without awaiting such.orders, the plaintiff was entitled to recover. His Honor so charged, and the case is made to turn upon the right of the plaintiff to give the order and have it obeyed. In this, there is error.
The contract was to carry the tobacco from Thomasville to Columbia, and there deliver it to the plaintiff’s consignee ; we see no principle upon which the contract can be modified by inserting a provision, that the plaintiff shall have the right to order the tobacco to be held over at Charlotte for a few days. It takes two to make a contract, and two to modify or vary it. A contract once made cannot be dissolved or varied, except by the consent of both of the contracting parties. This is a plain principle. The plaintiff’s counsel, when pressed with it, was not able to ci te a case or to give any satisfactory reason in support of the position taken by him. How did the plaintiff acquire a right to give orders to the defendant’s agent to hold over the tobacco at an intermediate place between Thomas-vile and Columbia? We can only look to the contract, and, there is no such stipulation in it.
It may be, that its agent by an express contract to hold goods over for a few days, at an intermediate station, can bind the company. The supposed consideration being a general benefit, of an increase of business, by accommodation of this kind extended to customers; but it is certain, this new con*41tract, or rather this addition to the original contract, must be express, and there is nothing from which it can he implied, or it may be, that a promise of the agent to hold the goods over at Charlotte, will be treated as a mere act of complaisance on his part, but nudum pactum in respect to the' company. If the purpose of the plaintiff was to reserve the right to hold the goods over at Charlotte, why did he not have that stipulation set out in the receipt or bill of lading ? or why did he not ship to Charlotte in the first instance ? This point is not presented, and we express no decided opinion.
The fact of an express promise by the agent ought to have been passed upon by the jury, and the defendant has a right to complain that the instruction excluded the question.
A shipper has no right to have the goods delivered to him, at an intermediate station where the bulk is not broken, except by the assent of the company; even should he offer to pay the freight, through, to the point of destination; for, it is not in the contract. We are inclined to think, however, that at a station like Charlotte, where the bulk is broken, that is, where the goods are unloaded, and transferred to another car or to the warehouse the shipper may, upon tendering the full freight, and indemnity against the consignee, require that the goods be delivered to him there, and not be carried further. On the principle, that having the goods carried, is for his benefit alone, and he may dispense with a part of that stipulation in the contract, the fright being all that concerns the company; as if one employs an overseer for a year at a fixed price, by paying up the full price he may dispense with further service; but this is a very different thing from instructing the agent, at an intermediate station, to hold the goods over until further instructions; thereby holding on to the contract, and adding to or varying its terms. This can only be done, if at all, by express agreement, with the agent acting for the company.
The defendants counsel asked His Honor to instruct the jury, that “ if the plaintiff was entitled to recovor, the dama *42ges should be nominal.” This, His Honor refused, but in effect charged that the measure of damages, was the value of the tobacco at Charlotte, on the day it was sent off. In this there is error.
The plaintiff received his tobacco in Columbia, and his consignee stored it in his own warehouse. If the plaintiff did not conclude to keep the tobacco, all he had to do was to send it back to Charlotte, and the measure of damages would have been the cost of sending it back, and compensation for the delay. He did not howveer choose to send it back, but had it stored in Columbia, and the measure of damages is the same, certainly it cannot be more, for the plaintiff made his election to keep it in Columbia with full knowledge of the surrounding circumstances ; indeed, if the price of tobacco was as good in Columbia as at Charlotte, it would seem the damages should be nominal. It was suggested that the receipt of the tobacco and having it stored in Columbia was a waiver of the liability of the defendant for sending it without orders, or at least reduced the damages to a mere nominal sum — we do not think so, for the plaintiff was not obliged to give up his tobacco, by refusing to receive it in Columbia and charge the whole value to the defendant; nor was he obliged to send it back and charge the defendant with the expense and delay — he had his election to receive the tobacco and keep it in Columbia, and charge the defendant with what it would have cost to put the tobacco back in the place from which it was wrongfully sent.
The case of Bell vs. Bowen, 1 Jones, 316, relied on by the plaintiff, for fixing the value of the tobacco at Charlotte as the measure of the damages does not sustain the position. There, if the man was carried out of the county, or worked on water, it was to be at the risk of the bailee; the contract was violated and the negro died during the year, so that the owner never got him ~back, here the plaintiff did get his tobacco back. Note the diversity.
*43Suppose, in that case the negro had been alive at the end of the year, sound and hearty, but the bailee had refused or neglected to send him home, and the owner was obliged to go to the other county and get him ; the measure of his damages would have been, the sum expended in bringing him home, and something for the delay.
So, in our case, the measure, is, the sum that would have been necessarity expended in putting the tobacco back where it was before and something for the delay ; indeed, this seems to have been the measure fixed by the plaintiff, in his own mind, when he required the President of the road to have the tobacco brought back to Charlotte; this, the President it seems, declined to do, probably because he did not admit the right of the plaintiff to order the agent of the company to hold the tobacco at Ohai'lotte. The effect of this refusal, was only to put on the company, a liability to pay, what it would cost to send it back, and compensation for the delay ; provided, the President was mistaken as to the right of the plaintiff to require that it should be sent back. But, it is said that would all have been well enough, if the tobacco had not been burnt, when Sherman’s army occupied Columbia. This is the gravemen of the action. We are unable to see how the act of the defendant, in sending the tobacco from Charlotte to Columbia, contrary to orders, was the cause of its being burnt, some ten or fifteen days afterwards, when Gen. Sherman’s army occupied Columbia. The coming of Gen. Shgrman and the fire was not a necessary or a probable consequence of sending the tobacco to Columbia. In the language of the books the cause is not proximate but remote ; and in fact altogether unexpected. On the 1st of Eebruary, the plaintiff ships his tobacco to Columbia ; on the 7th Eebruary, he writes to his consignee, after having in the meantime visited Columbia, how to dispose of the tobacco, and wishes to be advised as to prices for the purpose of sending more ; so he had no fear that Sherman would come, and that his coming would incidentally cause the tobacco *44to be burnt. It is not for him, now to say, that the sending of the tobacco to Columbia on the 4th of February was the cause of its being burnt. In short that was a result not looted for by him or by the defendant; and as he had the tobacco stored in a private warehouse, to be used by himself to the best advantage, the loss must fall upon him. I hire my riding horse, to be returned in two days; the bailee neglects to return the horse. In the meantime I have occasion to go to some place and for the want of a horse undertake to walk, and trip so as fall and break my leg. Is the bailee liable to pay for this injury, or only to make compensation lor the proximate and natural consequence of his violation of the contract? Again, a railroad by negligence fails to make connection; a passenger happens to be under recognizance to appear at some court; forfeits his recognizance and has to pay a large amount by reason of his failure to appear. Is the railroad company liable to pay the amount of the recognizance or only the ordinary and necessary expense caused by the delay ? Carry the illustration from Bell vs. Bowen further: Suppose the owner at the end of the year had received the slave, and while re-crossing Albemarle Sound the slave happened to be drowned, the loss would fall on the owner, for the act of taking the slave out of the county, is not the proximate cause of his death, although it may be, that but for that, he would not have been drowned. Broom’s Legal Maxims, 203,209. Mayne, on the law of damages, 15.
These are familiar and settled principles. The .only difficulty is in making the application. We are satisfied his Honor erred in supposing that the act of the defendant, in sending the tobacco from Charlotte to Columbia, on the 4th of Febru-uary, was the proximate cause of the fact that the tobacco was burnt on the 17th of February, thirteen days thereafter. Follow out the reasoning, and the defendant would have been chargeable with the value of the tobacco, if it had been *45destroyed six or twelve months after it was sent from Charlotte.
Error. Venire de novo.