Davis v. Stamford Mill & Elevator Co

• Decision Date: 08 March 1924
• Docket Number: (No. 10506.)
• Citation: 260 S.W. 1081
• Parties: DAVIS, Director General of Railroads, v. STAMFORD MILL & ELEVATOR CO. et al.
• Court: Texas Court of Appeals

260 S.W. 1081

DAVIS, Director General of Railroads, v. STAMFORD MILL & ELEVATOR CO. et al.

(No. 10506.)

Court of Civil Appeals of Texas. Fort Worth.

March 8, 1924.

Rehearing Denied April 12, 1924.

Appeal from District Court, Haskell County; W. R. Chapman, Judge.

Action by the Stamford Mill & Elevator Company and others against James C. Davis, Director General of Railroads, and others. From a judgment for plaintiff against the named defendant, and judgment in favor of the unnamed defendants, the named defendant appeals. Affirmed.

Ratliff & Ratliff, of Haskell, for appellant.

Davenport & Hardwick, of Stamford, for appellees.

BUCK, J.

The Stamford Mill, & Elevator Company sued A. G. Macon and J. P. Macon, constituting the firm of Macon Bros. and doing business at the town of Rochester, Tex., also James C. Davis, Director or Agent of Railroads. The plaintiff alleged that it had purchased from Macon Bros. a carload of wheat, then en route from Rochester to Fort Worth; that the plaintiff desired that said wheat be delivered at Galveston, and that Macon Bros. promised to divert and ship said car to Galveston; that defendant Macon Bros. did not properly divert said car, and that on about December 27, 1919, over four months after the contract of purchase had been made, and the promise made by Macon Bros. to immediately divert said shipment, billed to Fort Worth, to Galveston, that the plaintiff learned that said car was then at Fort Worth, and that he had to pay demurrage to the amount of $483, $5 reconsignment charge, and $19.94 war tax on the demurrage and reconsignment charges mentioned above; that all of said expenses were necessary to be paid and had to be paid by the plaintiff in order to have said car moved on to Galveston; that all of said expenses were the direct and proximate result of the defendants Macon Bros.' failure to properly divert and bill said car to Galveston.

In the alternative, plaintiffs alleged that if they had been mistaken as to the defendants Macon Bros. having been at fault as previously alleged, then that the defendants Macon Bros. did divert said car to Galveston, and did receive from the Kansas City, Mexico & Orient Railway Company of Texas, on which Rochester is located, a bill of lading showing that said car had been diverted properly to Galveston, and that said railway company did agree with said Macon Bros. to safely transport and carry said car of wheat in consideration of the freight being paid, which was paid. Hence, they alleged that James C. Davis, as Agent of Railroads, was liable for the amounts alleged to have been paid out by reason of the delay, with interest thereon.

From a judgment for the plaintiff as against James C. Davis, Director General of Railroads, in the sum of $654.20, with interest from the date of the judgment at the rate of 6 per cent. per annum and costs of suit, and a judgment in favor of the Macon Bros., James C. Davis, as "Agent of the President of the United States for the purpose of winding up the affairs of the United States Railroad Administration," has appealed.

The first proposition directed against the validity of the judgment below is that the trial court erred in overruling the general demurrer of James C. Davis to the plaintiffs' petition, on the ground that the petition failed to allege whether the contract alleged to have been made with Macon Bros. for the purchase of the car of wheat in question, on August 4, 1919, was oral or written. The allegations alleged the number of the car containing the wheat purchased by the plaintiff from Macon Bros., and alleged that a bill of lading had been given by the Kansas City Mexico & Orient Railway Company to the defendants Macon Bros., covering said car of wheat and shipment thereof to Fort Worth, and that another bill of lading had been substituted for the original bill of lading issued to Fort Worth binding the defendant James C. Davis to carry, or cause to be carried, said car of wheat from Rochester, Tex., to Galveston, Tex. A bill of lading was said to have been issued on or some time after the 4th day of August, but the evidence showed that it was issued on or after August 11, 1919. Suit was filed December 24, 1921. A "bill of lading" is a memorandum or acknowledgment in writing when signed by the carrier binding the carrier to transport the goods as therein directed. Such bill of lading is an instrument in writing binding the carrier to do the things therein specified. The bill of lading introduced in evidence, and requiring transportation to Galveston, was dated August 14, 1919. The testimony of plaintiff showed that the payment of the demurrage, reconsignment charges, and war tax on the shipment was made at Galveston, and that an expense bill was made out for such charges, and the payment demanded at Galveston before a delivery of the car to plaintiff was made. The evidence further shows that the car arrived at Galveston about the 28th of February, 1920, and that payment was made of these charges some time thereafter.

We believe that the evidence fully sustains the theory that the suit was filed within two years after the payment of the charges were made by plaintiff, even if the bill of lading could be held not to constitute an obligation in writing. It is upon this payment that the plaintiff seeks to recover. A pleading is not demurrable because it fails to state whether the contract sued on is oral or in writing, where such fact is not essential to the cause of action. Smith v. Patrick (Tex. Civ. App.) 36 S. W. 762.

The second proposition urged by appellant is that plaintiffs failed to allege to whom and at what point the expenses, consisting of demurrage, reconsignment charges, and war tax, were paid, and it was error for the court to overrule the general demurrer for that reason. It was urged that —

"In order to have said car moved from Fort Worth, Tex., to Galveston, Tex., as aforesaid, the plaintiff was compelled to and did on December 27, 1919, pay the following expenses accruing against said car while at Fort Worth, Tex., as aforesaid, to wit: Demurrage, $483; $5 reconsignment charges; and the sum of $19.94 war tax on the demurrage and reconsignment charge above mentioned."

It was shown that the charges were paid at Galveston. However, no plea of variance between the allegata and probata was urged. These two assignments are overruled.

The third proposition is that the trial court erred in overruling the general demurrer of defendant below because it failed to allege that it was through the fault or negligence of the defendant James C. Davis, his agents and employees, that the car in question was delayed, which delay was the result of the damages suffered, if any. It was alleged that —

"However, said Kansas City, Mexico & Orient Railway Company of Texas did not so transport and carry and cause to be carried said car of wheat to Galveston, Tex., as obligated to do as aforesaid, but on the contrary carried and had same carried to Fort Worth, Tex., where same was delayed as aforesaid through the fault and negligence of said Kansas City, Mexico &...