Missouri, Kansas & Texas Railway Co. v. Withers

40 S.W. 1073, 16 Tex. Civ. App. 506, 1897 Tex. App. LEXIS 263

• Court: Court of Appeals of Texas
• Decided: June 2, 1897
• Status: Published

Opinion

FISHEB,

Chief Justice.—This suit is by appellee against appellant to recover damages for the breach of a parol contract of the shipment of cattle to East St. Louis. The pleadings and facts are substantially the same as set out in the case of Railway v. Carter, 29 Southwestern Reporter, 565. The suit here was for $1759, and verdict and judgment was for $920.80. . .

We find the following facts: In May, 1892, appellee Withers and the appellant, through its agents, entered into a parol or verbal contract for shipment of the cattle in question, substantially as alleged by the plaintiff, whereby it was agreed, that the defendant would transport the cattle of plaintiff from Maxwell, Texas, to East St. Louis, and they were to be delivered by the appellant in East St. Louis on Tuesday morning, May 31, 1892, in time for that day’s market. The cattle were shipped for sale in the market at that place, which fact was known to the agent of appellant. The agreement was .that the cattle were, to be loaded on the cars at Maxwell, Texas, by 1 or 2 o’clock p. m., Saturday, May 28, 1892, and were to be sent on in a special train. The cattle were loaded on the train at Maxwell about 1 o’clock p. m., May 28th, and the train started out about 2 or 3 o’clock that evening. The agreement was that the cattle were to be run through to Vinita, Indian Territory, in twenty-six hours, and there were to have ten hours rest for feed and water. The cattle were delivered to and received by the railway company under this verbal or parol contract. We find that the agent- who entered into -the .contract with appellee had authority to make it. . ■ . .

A few minutes before the train started, the appellee, at the request of the agent of the appellant, signed the written contract pleaded by the defendant. Before signing it he did not read it, and, as he says in his evidence, did not have time to read it before the train started, and did not know its contents. When the contract was signed the cattle were on board the ears, and the cars had been closed and sealed, and the evidence of plaintiff is to the effect that he supposed the contract signed by him was a pass for a man to go with the cattle and return. In the parol or verbal contract there were no conditions about signing reports as to the condition of the cattle, nor about filing claims for damages, or when suit should be brought. There does not appear-to be any additional or new considerations given for the execution of the written contract, or any additional advantage or privilege extended to. appellee in consideration of its execution.

The facts show substantially that the appellee sustained the damages in the way and manner stated in his pleadings, and that the appellant breached the contract in the manner there stated, and that by reason, thereof the damages resulted. The written contract signed by appellee as pleaded by appellant contains the stipulations set out in its pleadings.

Conclusions■ of Law.—This is the same shipment of cattle that was passed upon by this court in the case of -Railway v. Carter, 29 Southwestern Reporter, 565, and the controlling facts of this case are almost identical with that case, and the'principles of law there stated are controlling and applicable here. This case was also before this 'court, and is reported in 32 Southwestern Reporter, 906, in which the doctrine of the Carter case was approved.

The Act of March 4, 1891, was in force when the contract in this case was entered into. In the Eddins case, 7 Texas Civil Appeals, 117 (26 Southwestern Reporter,' 162), and the Carter -ease, supra,-and in Reeves-v. Texas & Pacific Railway, 32 Southwestern Reporter, 920, that act is held to apply to interstate shipments. The petition was sufficient in stating that the contract-of shipment was made With the company. There was no error in refusing the charges' requested as set out in the fourth assignment of error. The charge :of the' court fully presented all of the issues that should have been submitted to the jury. We are-not prepared, under the facts of this case, to say that the appellant, by the wrongful and, in effect, fraudulent manner in which it obtained an execution of the written contract set up by it, did not lay itself open to the charges made against it by the attorney for appellee in his argument. But, however, we do not believe that the remarks of counsel -to the jury influenced the verdict, as we are satisfied, from the case made by the facts, they would have found the way they did if this language had not been used. What has'been said concerning the charges given, and those refused, applies to the eighth, eleventh, and twelfth assignments of error.

In response to the thirteenth assignment of error, we are .clearly of the opinion that the facts warrant the verdict and judgment. Judgment affirmed.

Affirmed.

Writ of error refused.