Coulter v. Gulf, C. & S. F. Ry. Co.

• Decision Date: 05 December 1925
• Docket Number: (No. 11303.)
• Citation: 286 S.W. 559
• Parties: COULTER v. GULF, C. & S. F. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

286 S.W. 559

COULTER v. GULF, C. & S. F. RY. CO.^*

(No. 11303.)

Court of Civil Appeals of Texas. Fort Worth.

December 5, 1925.

Rehearing Denied May 22, 1926.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Action by H. W. Coulter against the Gulf, Colorado & Santa Fé Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Sam J. Hunter, of Fort Worth, for appellant.

Lee, Lomax & Wren, of Fort Worth, for appellee.

BUCK, J.

This is the third appeal of this case, the decision of the first appeal being found in 139 S. W. 16, rendered by the Texarkana Court of Civil Appeals, the decision in the second appeal being found in 248 S. W. 788, rendered by this court, to which cases reference will be made for a fuller statement of the case than is necessary here.

On March 20, 1908, H. W. Coulter filed suit against the Gulf, Colorado & Santa Fé Railway Company for alleged damages to a shipment of billiard room furnishings, shipped from Fort Worth to Philadelphia. In his trial petition he alleged: That, before the shipment, the railway company's agents at Fort Worth had agreed with him to route the shipment by way of St. Louis, and over the Vandalia Railway line to Indianapolis, and that he should have the right to stop the shipment at Indianapolis, or to divert it to Detroit, Mich. That he had made a trade with one Grant H. Eby to sell him the furniture for $7,000, $3,000 to be paid in cash and the balance in notes. That he told the agents of the railway company at Fort Worth of this trade that he had made with Eby, and that they had notice of such trade. He alleged that instead of shipping the goods by way of St. Louis and Indianapolis, they shipped them to Chicago, over the lines of the Santa Fé system, and over the Nickel Plate Railway Company from Chicago to Buffalo, and over the Lehigh Railway Company from Buffalo, over and across the Blue Ridge Mountains, to the Philadelphia & Reading Railway Company, which delivered the same in its yards in the city of Philadelphia. That he was compelled by plaintiff to accept said shipment, without seeing it, and to pay a freight bill of $549.69. That said shipment was in transit for nearly two months. He further alleged that when he opened the two cars in which the goods were shipped, he found the goods greatly damaged, and that after nearly a year's effort of himself and his attorney at Philadelphia, he sold them for $1,200, the best bid that he could get. That Eby looked at the goods at Philadelphia, and first declined to negotiate any further with reference to the trade, but finally agreed that if the plaintiff would have the goods put in as good condition as they were at the time of leaving Fort Worth, and pay the freight thereon to Detroit, Mich., he would accept them at the agreed price, provided he would deliver them at Detroit within 30 days. He alleged that the manufacturers of the goods, Brunswick-Balke-Collender Company, consulted with by plaintiff, stated that they could not repair them within less than six months, and that consequently he was forced to lose the benefit of the contract of sale theretofore made with Eby.

In one count he sued for conversion, and in a second count he sued for damages by reason of the loss of the benefits of the trade claimed to have been made with Eby.

The defendant answered by way of a number of exceptions, a general denial, and specially pleaded that the railway company had no notice of any trade made by the plaintiff with Eby, and that although the railway company agreed with the plaintiff that if it was notified in time to divert the shipment from the defendant's line to St. Louis and then to Indianapolis, etc., it would do so, yet in fact plaintiff never notified the railway company of his desire to have such diversion made.

The trial was had before a jury, on special issues, which, with their answers, are as follows:

"(1) Was plaintiff, Coulter, the owner of the goods in question at the time he delivered them to defendant, Gulf, Colorado & Santa Fé Railway Company at Fort Worth, Tex., on May 2, 1907? Ans. Yes.

"(2) Were they in good order and condition at the time of delivery to defendant? Ans. Yes.

"(3) Did the defendant's freight agent, Dunham, deliver to plaintiff a written report or bill of lading for said goods? Ans. Yes.

"(4) Did or not plaintiff notify the defendant's agents, Graham and Dunham, or either of them, before or at the time he delivered the goods to defendant, that he had conditionally sold the goods to Grant H. Eby? Ans. No.

"(5) Find from the evidence whether or not the plaintiff showed Graham and Dunham, or either of them, the Eby letters read to you in evidence. Ans. No.

"(6) Find from the evidence whether or not the plaintiff requested Dunham to route and waybill the shipment by way of St. Louis over the Vandalia line of railway to Indianapolis, Ind. Ans. No.

"(7) Find from the evidence whether or not Eby had agreed in his letters to buy the goods for $7,000 conditioned upon Coulter's delivering them in good order and condition at Indianapolis or Detroit, and pay Coulter $3,000 cash and execute his notes for the balance payable monthly for $75 a month. Ans. Yes.

"(8) Find from the evidence whether or not, at the time Coulter delivered said goods to defendant for shipment, he had in his mind decided to accept said price and deliver said goods to Eby at Indianapolis or Detroit as Eby might request, if, when the parties met in St. Louis a few days later as requested by Eby in his letters, the details of the contract and payments should be settled satisfactorily to both parties. Ans. No.

"(9) Did the plaintiff and Eby afterwards, early in the month of May, 1907, meet in St. Louis and settle the details satisfactorily to each other? Ans. No.

"(10) Did they agree that Eby should pay $3,000 in cash to Coulter for the goods if delivered in Indianapolis or Detroit in good order and condition, and execute his notes payable monthly with interest from date thereof at or about 8 per cent. per annum, and secure said notes by chattel mortgage on the entire shipment of goods? Ans. Yes.

"(11) If you have answered special issues Nos. 7, 8, 9, and 10 affirmatively, then find from the evidence what in your judgment would have been the reasonable cash value of plaintiff's contract of sale of said shipment of goods to Coulter, if it had been closed up in writing and secured as agreed by the parties and duly recorded including the cash payment. Ans. Seven thousand dollars.

"(12) Find from the evidence whether or not the defendant's agent, Dunham, waybilled the shipment from Fort Worth to St. Louis, Mo., and thence over the Vandalia line of railroad to Indianapolis. Ans. No.

"(13) Find whether or not the defendant's agent agreed that plaintiff should have the right and privilege to stop the shipment at Indianapolis and divert it to Detroit in case Eby requested it. Ans. Yes.

"(14) Was it the policy of the defendant company to route and waybill shipments over the Atchison, Topeka & Sante Fé Railroad when the point of destination could be reached by diverting it over said road? Ans. Yes.

"(15) Did Dunham waybill this shipment over the Atchison, Topeka & Santa Fé in accordance with that policy, in order and for the purpose of throwing to defendant and said company a greater proportion of the freight rates from Fort Worth to Philadelphia? Ans. Yes.

"(16) Find from the evidence which was the shortest, cheapest, and best route to waybill said shipment to Indianapolis, the way defendant waybilled them or the way Eby requested, if he did request, them waybilled, in his letter of April 24, 1907. Ans. The way Eby requested was shortest, but the rates were the same.

"(17) Find from the evidence which was the shortest, cheapest, and best route to waybill said shipment to Philadelphia, the way defendant waybilled them or the route from Fort Worth to Oklahoma City, hence to St. Louis over the Vandalia line to Philadelphia. Ans. The way defendant waybilled the goods was the cheapest, but not the shortest and best, route.

"(18) Find from the evidence what sum of money did Coulter pay to Philadelphia & Reading Railway Company as freight and dray-age for the transportation of said goods from Fort Worth to Philadelphia. Ans. Five hundred forty-six dollars and sixty-nine cents.

"(19) Find from the evidence what the defendant's agents told Coulter what freight charge would be to Indianapolis, if they told him what they would be. Ans. No definite charge quoted.

"(20) What was the entire shipment of goods worth to Coulter, as secondhand billiard goods, in Philadelphia, in the condition they were in when delivered to Coulter? Ans. No stated value.

"(21) What were they worth to Coulter in the same city on the day they were sold to Brunswick-Balke-Collender Company, November 27, 1908? Ans. Twelve hundred dollars.

"(22) Was the price obtained from Brunswick-Balke-Collender Company [as good a price as could in that city at that time] as good a price as could be obtained for them by reasonable efforts to sell them for cash in the condition they were in when they were sold to Brunswick-Balke-Collender Company? Ans. Yes.

"(23) Find from the evidence whether there was in Philadelphia any current market value for such goods in the condition they were in when they were delivered to Coulter, or when they were sold. Ans. No.

"(24) Find from the evidence whether or not Mr. Coulter and his Philadelphia attorney, Mr. Saul, made reasonable efforts to find a purchaser for said goods. Ans. Yes.

"(25) Find from the evidence whether plaintiff and his lawyer in Philadelphia got the best price for them, in the condition they were in, that could be obtained by reasonable efforts and ordinary diligence. Ans. Yes.

"(26) What was the reasonable market value of said shipment of goods at Fort Worth when delivered to the defendant, and when the defendant's agent, Dunham, waybilled them via Chicago over the...