FISHER, Chief Justice.
The appellee instituted this suit in the County Court of Coryell County, and by first amended original petition alleged in substance as follows: That about the seventh day of June, 1893, his wife desired to make a trip to Goldthwaite and remain there for a month or six "weeks, on account of the ill-health of his child; that he applied to the defendant’s ticket agent at its office at McGregor for a round trip ticket to Goldtlrwaite, informing said agent that he wanted the ticket for the use of his wife, and of the ill health of his infant child, and that his wife would want to remain at Goldthwaite for a month, or perhaps six weeks, and asked the agent if he could issue a round trip ticket for that purpose; and that the agent replied he could, whereupon the plaintiff paid for the ticket and the defendant’s agent handed him a coupon round trip ticket from McGregor to Goldthwaite, retaining thé money therefor, $6.40; that plaintiff received the ticket, supposing that he was receiving an unlimited round trip ticket, and one that would answer his wife’s purpose in going to and returning from Goldthwaite when she should have completed her visit; that he left the defendant’s office with the ticket, but in a short time thereafter examined the ticket and discovered for the first time that the defendant’s agent had fraudulently issued a ticket in such a manner as to limit its use to June 17th, a period of only ten days; that as soon as he discovered the fraud, before time for his wife to board the defendant’s train, he returned to the ticket office, informed the agent of the fraud he had practiced, and that the ticket was not what he had called for, or what he had purchased, and did not suit him, and tendered it back to said ticket agent and demanded the return of the money that he, the plaintiff, had paid for the
same, or that the defendant’s agent should extend the time for said ticket to he used, so as to answer the purpose for which he had purchased the same, and said agent then and there refused to do anything for the plaintiff, saying that under the rules of the company he was not allowed to do so, and telling plaintiff that he could keep the said ticket and he would sell him another, hut this was all he could do for him. On the refusal of the said agent to correct the said fraud, plaintiff delivered the ticket to his wife and she hoarded one of defendant’s cars at McGregor and was transported *to Goldthwaite, defendant’s conductors honoring the ticket and taking up the coupons for Goldthwaite and returning the coupons for return passage, Goldthwaite to McGregor; that thereafter plaintiff became dangerously ill with fever at McGregor and telegraphed his wife, informing- her of his condition and requesting her to return as soon as possible; that thereafter on June 17, on receipt of such telegram, plaintiff’s wife promptly repaired to the defendant’s depot at Goldthwaite, but it was too late for the train going in the direction of McGregor on said date, and she was compelled to remain in Goldthwaite until the 18th of June; that she presented the ticket to defendant’s baggagemaster at Goldthwaite and demanded that he check her baggage to McGregor on the faith of said coupon, and that such agent then and there honored the said coupon and did check her baggage to McGregor; that plaintiff’s wife, believing that she was entitled to be transported to McGregor by the defendant under and by virtue of such coupon, entered into the defendant’s cars; and after riding in the cars a short distance she was called upon for her ticket by the conductor; that the defendant’s conductor refused to honor the said ticket, informed plaintiff’s wife that she would have to pay fare; that she told said conductor the circumstances under which such ticket was purchased, informed him of the refusal of the agent.at McGregor to correct such fraud, and also told him of her husband’s sickness at McGregor and her anxiety to be permitted to continue her journey, and that she had no means to pay fare or purchase another ticket, and on her failure to produce another ticket the said conductor ejected her from said train at Lometa, Texas; all to plaintiff’s damage in the sum of $1000. Defendant answered by special plea to the jurisdiction, general exceptions and general denial. There was a trial before jury, verdict and judgment on the 11th day of January, 1895, for $500.
It appears from the case made by the evidence offered in behalf of appellee that on the 7th day of June, 1893, he applied to the appellant’s ticket agent at McGregor for a round trip ticket to Goldthwaite and return for the use of his wife, and at the time informed the agent that on account of the ill health of his infant child, who would accompany his wife, she would remain at Goldthwaite and vicinity for a period of one month or six weeks, and asked the defendant’s agent if he could issue and sell a round trip ticket for that purpose; and thereupon defendant’s agent replied that he could. The agent then made out the ticket and folded and handed it to appellee, who thereupon paid the charges for a
round trip ticket. A few minutes afterwards appellee discovered that the ticket was limited to go and return within ten daj^s, whereupon he called the attention of the agent to such limitations and demanded a ticket good upon which to return in a month or six weeks, and tendered the ticket back to the agent and demanded a return of his money, or that the agent should extend the time as agreed upon. All of this the agent refused to do, and he kept the money. The round trip tickets sold for a reduced price. The appellee then placed his wife and child aboard the appellant’s train and they traveled upon the ticket t<5 Goldthwaite, and after the ten days had expired, but before the expiration of thirty days from the day upon which the ticket was purchased, she boarded defendant’s train at Goldthwaite in order to return to her home at Mc-Gregor. Before reaching Lometa, a station on appellant’s line of road, she was approached by the conductor for her ticket. The ticket originally purchased was produced and tendered the conductor and he declined to receive it, or permit her to have transportation, upon it because ten days had expired from the day of its issuance. She then explained to the conductor the circumstances under which her husband had purchased the ticket, and that the agent at McGregor had refused to issue her a ticket for the time requested by her husband. The conductor informed her that he would not receive the ticket, and that she would have to pay_fare or leave the train upon its arrival at Lometa. She stated that she had no money with which to pay the fare demanded. Upon arrival of the -train at Lometa she was required to leave it, and afterwards she returned to Goldthwaite in order to obtain money with which to purchase a ticket to McGregor. She procured the money and purchased a ticket and returned to McGregor. It appears that two days is all the time that was required in order to make the trip to Goldthwaite from McGregor and return. The evidence of the appellant is to the effect that a ticket was sold the appellee limited to ten days and that no request was made for a longer time, and that appellee did not offer to return the ticket and request another or that his money be refunded. In other words, the case of appellant as shown by its evidence is that no such understanding existed between it and appellee as testified about by Halbrook.
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FISHER, Chief Justice.
The appellee instituted this suit in the County Court of Coryell County, and by first amended original petition alleged in substance as follows: That about the seventh day of June, 1893, his wife desired to make a trip to Goldthwaite and remain there for a month or six "weeks, on account of the ill-health of his child; that he applied to the defendant’s ticket agent at its office at McGregor for a round trip ticket to Goldtlrwaite, informing said agent that he wanted the ticket for the use of his wife, and of the ill health of his infant child, and that his wife would want to remain at Goldthwaite for a month, or perhaps six weeks, and asked the agent if he could issue a round trip ticket for that purpose; and that the agent replied he could, whereupon the plaintiff paid for the ticket and the defendant’s agent handed him a coupon round trip ticket from McGregor to Goldthwaite, retaining thé money therefor, $6.40; that plaintiff received the ticket, supposing that he was receiving an unlimited round trip ticket, and one that would answer his wife’s purpose in going to and returning from Goldthwaite when she should have completed her visit; that he left the defendant’s office with the ticket, but in a short time thereafter examined the ticket and discovered for the first time that the defendant’s agent had fraudulently issued a ticket in such a manner as to limit its use to June 17th, a period of only ten days; that as soon as he discovered the fraud, before time for his wife to board the defendant’s train, he returned to the ticket office, informed the agent of the fraud he had practiced, and that the ticket was not what he had called for, or what he had purchased, and did not suit him, and tendered it back to said ticket agent and demanded the return of the money that he, the plaintiff, had paid for the
same, or that the defendant’s agent should extend the time for said ticket to he used, so as to answer the purpose for which he had purchased the same, and said agent then and there refused to do anything for the plaintiff, saying that under the rules of the company he was not allowed to do so, and telling plaintiff that he could keep the said ticket and he would sell him another, hut this was all he could do for him. On the refusal of the said agent to correct the said fraud, plaintiff delivered the ticket to his wife and she hoarded one of defendant’s cars at McGregor and was transported *to Goldthwaite, defendant’s conductors honoring the ticket and taking up the coupons for Goldthwaite and returning the coupons for return passage, Goldthwaite to McGregor; that thereafter plaintiff became dangerously ill with fever at McGregor and telegraphed his wife, informing- her of his condition and requesting her to return as soon as possible; that thereafter on June 17, on receipt of such telegram, plaintiff’s wife promptly repaired to the defendant’s depot at Goldthwaite, but it was too late for the train going in the direction of McGregor on said date, and she was compelled to remain in Goldthwaite until the 18th of June; that she presented the ticket to defendant’s baggagemaster at Goldthwaite and demanded that he check her baggage to McGregor on the faith of said coupon, and that such agent then and there honored the said coupon and did check her baggage to McGregor; that plaintiff’s wife, believing that she was entitled to be transported to McGregor by the defendant under and by virtue of such coupon, entered into the defendant’s cars; and after riding in the cars a short distance she was called upon for her ticket by the conductor; that the defendant’s conductor refused to honor the said ticket, informed plaintiff’s wife that she would have to pay fare; that she told said conductor the circumstances under which such ticket was purchased, informed him of the refusal of the agent.at McGregor to correct such fraud, and also told him of her husband’s sickness at McGregor and her anxiety to be permitted to continue her journey, and that she had no means to pay fare or purchase another ticket, and on her failure to produce another ticket the said conductor ejected her from said train at Lometa, Texas; all to plaintiff’s damage in the sum of $1000. Defendant answered by special plea to the jurisdiction, general exceptions and general denial. There was a trial before jury, verdict and judgment on the 11th day of January, 1895, for $500.
It appears from the case made by the evidence offered in behalf of appellee that on the 7th day of June, 1893, he applied to the appellant’s ticket agent at McGregor for a round trip ticket to Goldthwaite and return for the use of his wife, and at the time informed the agent that on account of the ill health of his infant child, who would accompany his wife, she would remain at Goldthwaite and vicinity for a period of one month or six weeks, and asked the defendant’s agent if he could issue and sell a round trip ticket for that purpose; and thereupon defendant’s agent replied that he could. The agent then made out the ticket and folded and handed it to appellee, who thereupon paid the charges for a
round trip ticket. A few minutes afterwards appellee discovered that the ticket was limited to go and return within ten daj^s, whereupon he called the attention of the agent to such limitations and demanded a ticket good upon which to return in a month or six weeks, and tendered the ticket back to the agent and demanded a return of his money, or that the agent should extend the time as agreed upon. All of this the agent refused to do, and he kept the money. The round trip tickets sold for a reduced price. The appellee then placed his wife and child aboard the appellant’s train and they traveled upon the ticket t<5 Goldthwaite, and after the ten days had expired, but before the expiration of thirty days from the day upon which the ticket was purchased, she boarded defendant’s train at Goldthwaite in order to return to her home at Mc-Gregor. Before reaching Lometa, a station on appellant’s line of road, she was approached by the conductor for her ticket. The ticket originally purchased was produced and tendered the conductor and he declined to receive it, or permit her to have transportation, upon it because ten days had expired from the day of its issuance. She then explained to the conductor the circumstances under which her husband had purchased the ticket, and that the agent at McGregor had refused to issue her a ticket for the time requested by her husband. The conductor informed her that he would not receive the ticket, and that she would have to pay_fare or leave the train upon its arrival at Lometa. She stated that she had no money with which to pay the fare demanded. Upon arrival of the -train at Lometa she was required to leave it, and afterwards she returned to Goldthwaite in order to obtain money with which to purchase a ticket to McGregor. She procured the money and purchased a ticket and returned to McGregor. It appears that two days is all the time that was required in order to make the trip to Goldthwaite from McGregor and return. The evidence of the appellant is to the effect that a ticket was sold the appellee limited to ten days and that no request was made for a longer time, and that appellee did not offer to return the ticket and request another or that his money be refunded. In other words, the case of appellant as shown by its evidence is that no such understanding existed between it and appellee as testified about by Halbrook.
The court, after instructing the jury with reference to ascertaining if a contract existed as claimed by appellee, and after instructing them up.on the theory of plaintiff’s case, instructed the jury as follows: “On the other hand, if you believe from the evidence that plaintiff bought a round trip ticket of defendant’s agent at McGregor from said point to Goldthwaite, on June 7, 1893, and that said ticket as purchased by plaintiff was good to return in ten days, and that said ticket was delivered by said agent to plaintiff and evidenced the contract plaintiff made with defendant’s agent, and that said limitation of said ticket to return in ten days was reasonable under the instructions heretofore given, viewed from the standpoint of the then surrounding circumstances, and that defendant’s .agent delivered to plaintiff just such a ticket as was bought
and paid for by plaintiff, and that said transaction was characterized with good faith and fair dealing on the part of defendant, then yon will find for defendant.” This charge was erroneous. The theory of the defendant, as it arose from the facts, was that the ticket represented and stated the contract as actually made, and that it did not enter into a contract giving the wife of appellee a right to transportation after ten days from the date the ticket was sold. The question in the case was, whether the contract entered into for transportation was for ten days, as claimed by defendant, or was for one month or six weeks, as claimed by the plaintiff. There was no controversy in the case over the question whether ten days allowed by the ticket was or was not a reasonable time in which to make the trip to Goldthwaite from McGregor and return: In fact, the evidence, without contradiction, shows that the trip going and returning could have been made over the route sold in much less time than ten days. Therefore it was error to, in effect, instruct the jury that the time limited must be reasonable' before they could find for the defendant. If ten days was the time agreed upon at the time of the purchase of the ticket, or if there was no time agreed upon in which the return trip should be made, then the defendant should recover. If a time was agreed upon as claimed by the plaintiff for return transportation good for thirty days or six weeks, this contract, if any, would govern the rights of the parties, although the agent in issuing the ticket limited it to a shorter period of time. Railway v. Mackie, 71 Texas, 494; Railway v. Rather, 3 Texas Civ. App., 72 (21 S. W. Rep., 957); Railway v. Wright, 21 S. W. Rep., 400; Railway v. Kinnebrew, 27 S. W. Rep., 631; Railway v. Martino, 18 S. W. Rep. 1069; 2 Texas Civ. App., 634; s. c., 21 S. W. Rep., 781); Railway v. Dennis, 23 S. W. Rep., 400. The real question in the case is whether such a contract was entered into. The statement by the plaintiff, that he desired such a ticket, and proposition bubmitted to the agent to sell him a ticket of that description, will not constitute a contract unless there was an agreement or understanding between the parties that plaintiff should have the desired transportation. The ticket is not conclusive evidence of the contract, and the plaintiff may show what it really is. (Cases cited, supra.)
In view of another trial, we suggest, in reference to the question raised by the ninth assignment of errors, that it would be best for the court in its charge to give in full the rule with reference to the measure of damages that exists in cases of this character. And we also suggest that it would be proper to omit instructing the jury that it would be the duty of the conductor to investigate the statement made by plaintiff’s wife as to her right to ride on the ticket. If a contract was actually made as claimed by the appellee, and the conductor was informed of its terms when he called upon the holder of the ticket for her transportation, the appellant would be bound by the contract, whether the conductor endeavored or not to investigate her statement or to ascertain if such a contract was entered into.
The argument of counsel complained of in the twenty-sixth and
twenty-seventh assignments of error will not likely be repeated upon another trial. If so, it is possible it may be ground for reversal. We have examined the other questions raised and we find they, in our judgment, present no reversible error. But there is one question we desire to notice before closing the case.
The appellant contends that if a contract was entered into as claimed by appellee, a breach of the same occurred when the railway agent refused to issue him a ticket good for the time he desired when he demanded one of that character from him at the time he called the attention of the agent to the ten days’ time in which the ticket was limited. And if a breach of the contract then resiilted, appellee’s action for damages then arose, and he could only recover the damages sustained up to that time, and by reason of that breach, and not for what occurred subsequently, as he knew when he placed his wife aboard the train that the contract had been breached and he would not be permitted to use the ticket after the expiration of ten days. This does not appear to us to be a sound proposition of law. If a contract for transportation good for the time stated by appellee was actually made, and the consideration therefor was paid, it was a right of appellee to enforce performance in accord with its terms, and the statement by appellant that it did not propose to observe the contract would not absolve or relieve it from its liability to perform it. When one acquires a right by a valid contract and he undertakes to enjoy its benefits in a lawful and orderly manner, a former notice to him that he will not be permitted to enjoy the right purchased will not end the contract and deprive him of its benefits. And when in the pursuit of his rights and privileges in the premises, he is prevented in partaking of its benefits by the conduct of the violator of the agreement, such one so creating the breach can not urge as a defense that the breach he was guilty of shall be a bar to recovery for the subsequent consequences that resulted by reason of his wrongful interference. Suppose that I should purchase a ticket granting me the privilege of a seat in a theater, and before I occupied the seat I was informed by the agent that sold it that I would not be permitted to enjoy its benefits; and, ignoring the breach, I should occupy the seat purchased, and when conducting myself in an orderly manner, should be removed or ejected from the theater. Could the consequences that resulted from this tort or trespass be defended on the ground that the agent had notified me that he had violated or would violate the contract, and would I be estopped in recovering such damages because I had been previously informed that I should not enjoy what.I had bought and paid for and what was rightfully mine? A rule that would deny me the privilege to enjoy the benefits of the contract and subordinate my rights to the arbitrary will of the violator would be a doctrine that should find no favor or advocate in a court of law or equity. But a rule more consonant with reason and justice would be that I might expect the wrongdoer, when I was endeavoring to enjoy the privileges and benefits purchased, would “see the error of his ways,” and relent, and not persist
in executing the unlawful purpose to create a breach in fact by wrongfully and foreibfy depriving me of benefits to which I may be entitled. If I, without violence and in an orderly manner, seek to enjoy the benefits I have purchased, it then becomes the duty of the one from whom I acquired these rights by contract to abstain from acts that would deprive me of my rights in the premises, and if he, in violation of this duty, becomes an active agent in further breaching the contract by forcibly refusing me the privilege purchased, there results an additional wrong in the nature of a tort or trespass, for the proximate consequences of which he would be liable. Railway v. Roemer, 1 Texas Civ. App. Rep., 192; Shirley v. Railway, 78 Texas, 144.
Delivered February 5, 1896.
For the error in the charge, the judgment is reversed and cause remanded.
Reversed and
remanded.