Cantu v. Bennett

• Decision Date: 01 January 1873
• Citation: 39 Tex. 303
• Parties: A. CANTU v. W. A. BENNETT.
• Court: Texas Supreme Court

39 Tex. 303

A. CANTU

v.W. A. BENNETT.

Supreme Court of Texas.

1873.

1. If a contract is made with regard to personal property, its construction is to be determined by the law of the place where it is made; but if it refers to real property it is to be construed by the law where such property is situate.

2. The laws of Mexico do not hold a carrier responsible when the subject of the bailment is taken away by superior force or robbery.

3. The liability of a common carrier who undertakes in Mexico to convey goods from the territory of that government into Texas, is to be determined according to the laws of Mexico.

4. No damages can be recovered for the breach of a contract to convey money from Mexico to Texas, during the late war, to enable the bailee to carry on a contraband trade.

5. The transportation of coin or bullion from Mexico into Texas during the late civil war was in violation of law, and no contract for such transportation can form the basis for an action.

ERROR from Bexar. Tried below before the Hon. Geo. H. Noonan.

This suit was brought by Bennett against Cantu. Bennett alleged that Cantu, as a common carrier, through his agent, Q. Rodriguez, on April 6, 1865, received from W. A. Bennett & Co., at Piedras Negras, in Mexico, a sum of $28,000 coin, to be delivered to W. A. Bennett at San Antonio, Texas, and that Cantu had failed to deliver $24,000 thereof.

The bill of lading, a Spanish document made in Mexico, was attached to the petition as a part thereof.

An attachment was sued out and levied upon the train belonging to Cantu, which was sold for $3,290 under an order of court.

Cantu, by plea of non est factum denied the execution of the bill of lading, and alleged that the money was taken from Quirino Rodriguez in the night by superior force of the soldiers of the Confederate States, then at war with the United States, without any negligence, default or want of due care on the part of Rodriguez.

That the bill of lading was made and delivered at Piedras Negras, Mexico; that the Mexican laws relative to common carriers were different from the English common law, excusing the carrier if the loss was caused by superior force, and that they govern the adjudication of controversies arising under the bill of lading.

He alleged that the suing out of the attachment was malicious and wrongful, and so, too, the sale of the property, estimating his damages at $17,000.

That war existed between the United States and the Confederate States; that Piedras Negras, the place where the bill of lading was made, was in Mexico, a neutral country; that the freight was contraband of war; that the commerce carried on between W. A. Bennett & Co., in Piedras Negras, and W. A. Bennett, of San Antonio, was illicit and against law; that such commerce was carried on through the town of Eagle Pass, in Texas, a port closed by the proclamation of the president of the United States and by acts of congress.

Bennett moved to strike out the answer so far as it set up the illegality of the transaction, and the court sustained the motion.

It appeared that Martin Muench (who, with W. A. Bennett, composed the firm W. A. Bennett & Co., and who had an interest of $4,000 or more in the coin shipped), made an agreement with Quirino Rodriguez, the conductor of the train of A. Cantu, for the transportation of the coin. On April 5, 1865, the bill of lading was signed at Piedras Negras, Mexico.

On the ninth of April, 1865, the train camped on the Sabinal creek, Uvalde county, Texas, when, about 2 o'clock in the night, a party of men rode up, who, being hailed, alleged they were scouting for a couple of Mexicans who had killed a man in Castroville. They wanted to search the train, but being refused permission forced their way in, and before any alarm could be given, were upon the men of the train, disarmed them and took them off about a mile, where they guarded them until their confederates were off with the booty. The party consisted of about twenty-five to thirty soldiers in uniforms, armed with pistols, six-shooters and rifles.

Twenty-four thousand dollars were taken; the remainder was delivered to the consignee by Rodriguez.

Verdict and judgment for Bennett for $11,210, from which Cantu appealed.

The eighth assignment of error refers to the exclusion by the court of the depositions of Mexican attorneys relative to the legality of the bill of lading, and the interpretation of the same under the laws of Mexico.

W. B. Leigh, for plaintiff in error, in an exhaustive brief, contended:

1. Cantu could not be bound by Rodriguez, whose acts were not expressly nor impliedly sanctioned by him.

2. The whole business was unlawful so far as Bennett was concerned.

3. The “public enemy” by “ vis major” had taken the freight; consequently the carrier was not responsible.

Wælder & Upson, for defendant in error, contended that contracts made in one place to be executed in another are to be governed by the laws of the place of performance, and therefore the depositions of the Mexican attorneys were rightly excluded, citing Andrews v. Pond, 13 Peters, 65; Story, Confl. Laws, sec. 280; 2 Kent, Com.

They also insisted that money could not be considered as contraband unless intended for the use of the belligerent into whose territory it was carried; that even if contraband, it was not ipso facto forfeited, but was only liable to seizure while in transitu.

WALKER, J.

Were we to attempt to discuss the multifarious questions raised upon the twelve bills of exception and the twenty-six reasons given for a new trial, and the fourteen assignments of error, we fear it would be greatly to the prejudice of the other business of this court; but after a very careful consideration and analysis of the whole record, we think we can do the case justice by a brief statement of what we consider the law of the case. This suit grew out of a transaction which may be briefly stated.

W. A. Bennett and his partner, Martin Muench, early in the month of April, 1865, during the late civil war, wanted to bring some $28,000 of silver coin from Piedras Negras, in Mexico, to San Antonio, Texas, for what purpose the statement of facts does not inform us in direct terms. Ambrosio Cantu, of Monterey, Mexico, was the owner of a train of mule teams, which, the evidence tells us, had been engaged during the greater period of the war in hauling cotton from...