EIDSON, Associate Justice.
The statement of the nature and result of the suit given by appellant in its brief is concurred in by appellee and is adopted by this court, and is as follows:
"The appellees instituted this spit in the District Court of Robertson County, Texas, on the 13th day of November, 1903', against the appellant to recover damages laid in the ad damnum clause at $1,935, for breach of a special contract for the shipment of fruit trees from Waco, Texas, by the terms of which the appellant was alleged to have bound itself to forward the trees by a certain train, and deliver them on the arrival of a certain train at Hearne, which it failed to do, but wrongfully delayed the shipment between Waco and Hearne; in consequence of which the fruit trees were frozen, and appellee was not able to make
the deliveries to purchasers whom, he had notified to meet him at Hearne on December 20, 1901, to receive the nursery stock purchased.
“On January 4, 1904, the appellant filed its plea in abatement, challenging the jurisdiction of the District Court to try the ease on account of the cause of action having been formerly-removed into the Federal Court. To which plea the appellee demurred. Proof was heard on the plea and the court overruled it. To this action of the court appellant excepted.
“On January 4, 1904, the appellant filed a petition and bond for removal of the cause. The petition was refused by the court. To the action of the court in refusing the application for removal the appellant also excepted.
“On February 4, 1904, the appellant filed its first amended original answer to the merits and interposed a general demurrer and several special exceptions to the appellee’s petition. Also a general denial, a plea of want of authority in the agent at Waco to make the contract alleged, and a plea of contributory negligence on the part of the appellee in delivering the stock, if the same was damaged. On February 4, 1904, the case was called for trial, and the appellant announced not ready for trial, and made its first application for a continuance, which was by the court overruled, to the overruling of which the appellant excepted. The trial resulted in a verdict in favor of the appellee in the sum of $950, on which judgment was rendered.”
Appellant’s first assignment of error is as follows: “The court erred in overruling defendant’s application for removal of said cause to the Circuit Court of the United States for the Western District of Texas.”
Its second assignment of error is as follows: “The court erred in overruling and failing to sustain the defendant’s plea in abatement to the jurisdiction of the court over the subject matter of this suit.”
Both of these assignments of error relate to the same question, which is, whether the cause should have been removed to the Federal Court. The appellee first brought suit in the District Court of Robertson County against the International
&
Great Northern Railroad Company and appellant for damages for failure to safely transport and deliver the nursery stock involved in this suit, and alleged the damages sustained at the sum of $12,550. That cause was removed from said District Court to the United States Circuit Court at Waco, on the ground of the amount in controversy, and also because the International & Great Northern Railroad Company had been made a party to the suit fraudulently. Before that cause came on for trial in the United States Court, the plaintiff, appellee, in this case, made a motion to have the cause dismissed at his costs, which was granted and judgment of dismissal entered. This case was afterwards instituted against the Pacific Express .Company, appellant herein, alone, and the amount of damages laid at the sum of $1,930.
We are of opinion that appellee had the legal right to dismiss the case in the Federal Court, as was done, and thereafter to institute this suit, as shown by the record; and we therefore overrule appellant’s first and second assignments of error.
Appellant’s third assignment of error complains of the action of the
court below in overruling its first application for a continuance. In this there was no error, because the application did not comply with the statutory requirements, in that it failed to state that appellant had used due diligence to procure the testimony of the absent witnesses. Revised Statutes, article 1278; Crawford v. Saunders, 29 S. W. Rep., 102; Missouri P. Ry. Co. v. Aiken, 71 Texas, 373; St. Louis & S. F. Ry. Co. v. Woolum, 84 Texas, 570; Brown v. Abilene Nat. Bank, 70 Texas, 750.
Appellant’s fourth assignment of error complains of the action of the court below in overruling defendant’s special exception number 1' to the plaintiff’s petition, and submits thereunder the proposition that the defendant was entitled to know, by allegation in plaintiff’s petition, the kind of nursery stock plaintiff claimed the right to recover from- it the market value of; the ground of said special exception being that plaintiff’s petition contained no description or bill of particulars of the contents of the shipment of fruit trees, and that the allegations in respect thereto were insufficient to inform defendant as to the kind or character of trees plaintiff shipped. It does not appear from plaintiff’s petition that he sued for the market value of the nusery stock, but that he sued for the amount at which he had sold such stock to his customers at Hearne, and which he alleged defendant was fully apprised of when the stock was received and it agreed to deliver same. Hence it was unnecessary to give any description or bill of particulars of the contents of such shipment, plaintiff’s measure of damages being the amount for which said nursery stock had been sold to his said customers. Moreover, it appears from the proceedings had upon the trial, the course, extent, character and nature of the defense interposed by defendant, that it was fully apprised of the matters it was called upon to meet and defend against. Hence we hold there was no error in overruling said
Appellant in its fifth assignment of error complains of the action of the court below in overruling its special exception number 3 to plaintiff’s petition, said exception being based upon the ground that the item of expense for renotifying and delivering to purchasers the nursery stock, as pleaded by plaintiff, is too remote and is not itemized. Defendant was fully informed as to the accrual of this element of damage, in the event it failed to deliver the stock safely and in the time agreed upon, and there was no necessity of itemizing the different matters constituting the amount. St. Louis S. W. Ry. Co. v. Stonecypher, 25 Texas Civ. App., 569, 2 Texas Ct. Rep., 1052; Missouri P. Ry. Co. v. Edwards, 78 Texas, 307; Williams v. Perry, 3 Willson, Civ. Cas., sec. 209. And what is said in the disposition of this assignment disposes of appellant’s sixth assignment of error.
Appellant’s seventh and eighth assignments of error complain of the action of the court below in admitting, over its objections, the testimony of plaintiff’s witnesses as to what was contained in the orders for the fruit trees described in plaintiff’s petition, and as to the expense plaintiff was put to in delivering fruit trees, upon the alleged grounds that the pleadings were insufficient to authorize the admission of such testimony.
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EIDSON, Associate Justice.
The statement of the nature and result of the suit given by appellant in its brief is concurred in by appellee and is adopted by this court, and is as follows:
"The appellees instituted this spit in the District Court of Robertson County, Texas, on the 13th day of November, 1903', against the appellant to recover damages laid in the ad damnum clause at $1,935, for breach of a special contract for the shipment of fruit trees from Waco, Texas, by the terms of which the appellant was alleged to have bound itself to forward the trees by a certain train, and deliver them on the arrival of a certain train at Hearne, which it failed to do, but wrongfully delayed the shipment between Waco and Hearne; in consequence of which the fruit trees were frozen, and appellee was not able to make
the deliveries to purchasers whom, he had notified to meet him at Hearne on December 20, 1901, to receive the nursery stock purchased.
“On January 4, 1904, the appellant filed its plea in abatement, challenging the jurisdiction of the District Court to try the ease on account of the cause of action having been formerly-removed into the Federal Court. To which plea the appellee demurred. Proof was heard on the plea and the court overruled it. To this action of the court appellant excepted.
“On January 4, 1904, the appellant filed a petition and bond for removal of the cause. The petition was refused by the court. To the action of the court in refusing the application for removal the appellant also excepted.
“On February 4, 1904, the appellant filed its first amended original answer to the merits and interposed a general demurrer and several special exceptions to the appellee’s petition. Also a general denial, a plea of want of authority in the agent at Waco to make the contract alleged, and a plea of contributory negligence on the part of the appellee in delivering the stock, if the same was damaged. On February 4, 1904, the case was called for trial, and the appellant announced not ready for trial, and made its first application for a continuance, which was by the court overruled, to the overruling of which the appellant excepted. The trial resulted in a verdict in favor of the appellee in the sum of $950, on which judgment was rendered.”
Appellant’s first assignment of error is as follows: “The court erred in overruling defendant’s application for removal of said cause to the Circuit Court of the United States for the Western District of Texas.”
Its second assignment of error is as follows: “The court erred in overruling and failing to sustain the defendant’s plea in abatement to the jurisdiction of the court over the subject matter of this suit.”
Both of these assignments of error relate to the same question, which is, whether the cause should have been removed to the Federal Court. The appellee first brought suit in the District Court of Robertson County against the International
&
Great Northern Railroad Company and appellant for damages for failure to safely transport and deliver the nursery stock involved in this suit, and alleged the damages sustained at the sum of $12,550. That cause was removed from said District Court to the United States Circuit Court at Waco, on the ground of the amount in controversy, and also because the International & Great Northern Railroad Company had been made a party to the suit fraudulently. Before that cause came on for trial in the United States Court, the plaintiff, appellee, in this case, made a motion to have the cause dismissed at his costs, which was granted and judgment of dismissal entered. This case was afterwards instituted against the Pacific Express .Company, appellant herein, alone, and the amount of damages laid at the sum of $1,930.
We are of opinion that appellee had the legal right to dismiss the case in the Federal Court, as was done, and thereafter to institute this suit, as shown by the record; and we therefore overrule appellant’s first and second assignments of error.
Appellant’s third assignment of error complains of the action of the
court below in overruling its first application for a continuance. In this there was no error, because the application did not comply with the statutory requirements, in that it failed to state that appellant had used due diligence to procure the testimony of the absent witnesses. Revised Statutes, article 1278; Crawford v. Saunders, 29 S. W. Rep., 102; Missouri P. Ry. Co. v. Aiken, 71 Texas, 373; St. Louis & S. F. Ry. Co. v. Woolum, 84 Texas, 570; Brown v. Abilene Nat. Bank, 70 Texas, 750.
Appellant’s fourth assignment of error complains of the action of the court below in overruling defendant’s special exception number 1' to the plaintiff’s petition, and submits thereunder the proposition that the defendant was entitled to know, by allegation in plaintiff’s petition, the kind of nursery stock plaintiff claimed the right to recover from- it the market value of; the ground of said special exception being that plaintiff’s petition contained no description or bill of particulars of the contents of the shipment of fruit trees, and that the allegations in respect thereto were insufficient to inform defendant as to the kind or character of trees plaintiff shipped. It does not appear from plaintiff’s petition that he sued for the market value of the nusery stock, but that he sued for the amount at which he had sold such stock to his customers at Hearne, and which he alleged defendant was fully apprised of when the stock was received and it agreed to deliver same. Hence it was unnecessary to give any description or bill of particulars of the contents of such shipment, plaintiff’s measure of damages being the amount for which said nursery stock had been sold to his said customers. Moreover, it appears from the proceedings had upon the trial, the course, extent, character and nature of the defense interposed by defendant, that it was fully apprised of the matters it was called upon to meet and defend against. Hence we hold there was no error in overruling said
Appellant in its fifth assignment of error complains of the action of the court below in overruling its special exception number 3 to plaintiff’s petition, said exception being based upon the ground that the item of expense for renotifying and delivering to purchasers the nursery stock, as pleaded by plaintiff, is too remote and is not itemized. Defendant was fully informed as to the accrual of this element of damage, in the event it failed to deliver the stock safely and in the time agreed upon, and there was no necessity of itemizing the different matters constituting the amount. St. Louis S. W. Ry. Co. v. Stonecypher, 25 Texas Civ. App., 569, 2 Texas Ct. Rep., 1052; Missouri P. Ry. Co. v. Edwards, 78 Texas, 307; Williams v. Perry, 3 Willson, Civ. Cas., sec. 209. And what is said in the disposition of this assignment disposes of appellant’s sixth assignment of error.
Appellant’s seventh and eighth assignments of error complain of the action of the court below in admitting, over its objections, the testimony of plaintiff’s witnesses as to what was contained in the orders for the fruit trees described in plaintiff’s petition, and as to the expense plaintiff was put to in delivering fruit trees, upon the alleged grounds that the pleadings were insufficient to authorize the admission of such testimony. We overrule these assignments of error because, as
heretofore stated, the pleadings were sufficient to authorize the admission of the testimony.
There was no error in the refusal of the court below to give to the jury defendant’s special instructions numbers
2
and 4, as it was not necessary for the plaintiff to prove affirmative authority to defendant’s agent to make the contract alleged in his petition, as he could rely upon the station agent at Waco having such authority,.the same being within the scope of his agency.
By its eleventh assignment of error appellant contends that the court below erred in his general charge in assuming that the drivers of defendant’s express wagons at Waco had authority to bind the defendant to a contract for the delivery of freight at a particular time at its destination, and to make the special contract sued on by the plaintiff in this case. .This assignment of error is directed to the following paragraph of the general charge of the court:
“If you believe from the evidence that plaintiff, on or about the 19th day of December, A. D. 1901, contracted with defendant’s agent or agents at Waco, Texas, for the
safe
and speedy carriage and delivery of nursery stock described in plaintiff’s petition, from Waco to Hearne, Texas, and that plaintiff then and there explained to defendant’s agents and employes the importance of having said stock transported safely and without same being damaged by weather or otherwise, and the importance of said stock reaching Hearne on the morning of December 30, 1901, in time for delivery to his customers, and plaintiff fully explained to said agents the damages that would ensue if said stock was damaged en route, and of the damages that would ensue to him if the same was delayed en route; and you further believe that said defendant’s agents, understanding the importance of the safe and punctual delivery, and understanding from said plaintiff’s explanations the damages that would ensue to plaintiff by failing to promptly and safely carry and deliver said stock, agreed with the plaintiff for the price bf carriage, that it would carry said stock on the same train that plaintiff would take from Waco and which would connect with the train at Lewis Switch, and that said stock would then be placed on a train of the International & Great Northern Railroad Company, and would carry and deliver said stock at Hearne, Texas, on the morning of December 30, 1901; and you further believe that defendant’s agent or agents at Lewis Switch carelessly failed to transfer said stock, to the International
&
Great Northern train on the main line which went to Hearne, if it did go to Hearne, and that said stock could have been transferred to said train, and allowed said stock to remain at Lewis Switch, or to be forwarded to some station other than Hearne, so that said stock did not reach Hearne on the morning of December 30, 1901, and that the failure of defendant’s agent or agents to place said stock on the train going
to
Hearne, if it did fail to do so, caused said stock to be destroyed, or partially destroyed and injured, you will, if you so believe, find your verdict for the plaintiff.”
We are of opinion that the giving of this instruction was error. The evidence shows that Gibson was the local station agent of appellant at Waco, and that the other employes with whom plaintiff claimed to have
made the contract alleged in his petition were drivers of delivery wagons for it, appellant; and there is no evidence in the record tending to show that they (the drivers) were authorized by appellant to make the contract sued upon. And said paragraph of the court’s charge assumed that they (the drivers) had such authority, and is therefore erroneous.
We have carefully considered the other assignments of error embraced in appellant’s brief, and are of opinion none of them is well taken, and therefore overrule them.
For the error above indicated, the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.
Associate Justice Key dissents on one point discussed in the above opinion but concurs in the result.