131 S.W. 306 (Tex.Civ.App. 1910), St. Louis, B. & M.R. Co. v. Murphy & Kay

Citation:131 S.W. 306
Opinion Judge:JAMES, C.J.
Party Name:ST. LOUIS, B. & M.R. CO. v. MURPHY & KAY.
Attorney:Claude Pollard, C.M. Robards, and R.J. McMillan, for appellant. Fly & Daniel, for appellees.
Case Date:October 12, 1910
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 306

131 S.W. 306 (Tex.Civ.App. 1910)

ST. LOUIS, B. & M.R. CO.

v.

MURPHY & KAY.

Court of Civil Appeals of Texas

October 12, 1910

On Motion for Rehearing, Nov. 2, 1910.

Appeal from Victoria County Court; J.P. Pool, Judge.

Action by Murphy & Kay against the St. Louis, Brownsville & Mexico Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Claude Pollard, C.M. Robards, and R.J. McMillan, for appellant.

Fly & Daniel, for appellees.

JAMES, C.J.

The case was tried on an appeal from the county court. The amended pleading of plaintiffs Murphy & Kay alleged, in substance, that the defendant's agent agreed with them to place cars at the station of Cranell, in Refugio county, for a shipment of plaintiffs' calves and that defendant's train would take up said calves on October 4, 1907, for transportation to New Orleans; that said cars were not placed as agreed on, and plaintiffs, relying on the agreement, penned the calves at Cranell Station in the shipping pens in time to be taken up by the train on said 4th day of October; that defendant failed and refused to take up said calves on that day, and plaintiffs were compelled to hold same in the pens until October 6th, when they were taken up and moved, during which time they suffered damage in their market value in Refugio county in the sum of $2 per head, by reason of said act of defendant. The pleading alleged further in the alternative that if plaintiffs were mistaken in the allegation that the calves were damaged in their market value in Refugio county in said sum, and if there was no market value for said calves there, then that the calves were at that time and place damaged in their intrinsic value in the sum of $2 per head. The trial resulted in a judgment against defendant for $130.

The first assignment of error questions the court's charge in one particular. After charging the jury if, among other things, they found defendant's agent agreed, or by words and acts, reasonably calculated to lead an ordinarily intelligent person to believe, caused plaintiffs to believe, defendant would furnish cars and that their calves would be transported on October 4, 1907, and that it was in pursuance of such understanding that plaintiffs penned their calves at Cranell Station in time for defendant's train due to pass that day, etc., to find for plaintiffs, the court...

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