Fountain v. The Wabash Railroad Company
| Decision Date | 06 November 1905 |
| Parties | R. M. FOUNTAIN et al., Respondents, v. THE WABASH RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. A. H. Waller, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Geo. S Grover and N. T. Gentry for appellant.
(1) The evidence was not sufficient to establish that a contract was entered into between the plaintiffs and defendant's agent. Gann v. Railroad, 65 Mo.App. 670. (2) The trial court committed error in permitting two of the plaintiffs, Mr. Greene and Mr. Fountain, to testify to the contents of a telegram that they received from the Drumm Commission Company, to the effect that the price of cattle had gone down fifteen cents. Nothing short of a deposition or evidence in open court, of someone connected with said business could be admitted to prove the matters contained in such a statement. Hoskins v. Railroad, 19 Mo.App 315; Hess v. Railroad, 40 Mo.App. 202; Kent v. Miltenberger, 50 Mo.App. 480. (3) Error was also committed by the trial court in permitting the plaintiffs, Mr. Booth and Mr. Bartee, to testify that the price of cattle in Chicago and St. Louis was lower on the thirteenth day of October than it was on the sixth day of October. These gentlemen frankly admitted that all that they knew about the price of cattle in Chicago and St. Louis was what different commission men told them and what they learned from the newspapers. O'Neil v. Crain, 67 Mo. 251; Fogue v. Burgess, 71 Mo. 389; Cable v. McDaniel, 33 Mo. 363; 1 Greenl. on Evid. (Red Ed.), sec. 124; Railroad v. Johnson, 42 Ala. 242; McKelvey on Evid., sec. 141. (4) Error was also committed in permitting one of the plaintiffs, Mr. Green, to testify to the difference in the price of cattle in Chicago on October 12 and 13. This witness admitted that he was not in Chicago or St. Louis on either day, but that he got his information from the Chicago Drover's Journal and the Live Stock Reporter. (4) The trial court committed error in refusing to admit in evidence the written contract (the Wabash live stock contract) when it was offered in evidence by defendant. This was clearly a waiver of any claim that plaintiffs had against the defendant, and was based on a good, valid consideration, to-wit: The execution of a written contract and the obtaining of a special or reduced rate of shipment. Gann v. Railroad, 72 Mo.App. 38; Miller v. Railroad, 62 Mo.App. 259; Helm v. Railroad, 98 Mo.App. 423.
Thos. S. Carter and Gillespy & Conley for respondents.
(1) The evidence is amply sufficient to establish a contract to furnish the cars. Gann v. Railroad, 65 Mo.App. 670; Gann v. Railroad, 72 Mo.App. 34. Verbal contracts for the shipment of live stock have been upheld in many instances in this State and in other jurisdictions. Harrison v. Railroad, 74 Mo. 364; Miller v. Railroad, 62 Mo.App. 252; Gann v. Railroad, 72 Mo.App. 34. (2) Defendant complains of the admission of the evidence offered by plaintiffs as to the decline in the price of cattle. To hold that the business world cannot learn, and does not know, fluctuations in the price of almost every known commodity on the face of the earth by the market reports in the newspapers, and market journals and by telegraph and telephone, is to strike down the sources of all business knowledge. Railroad v. Patterson, 24 S.W. 349; Railroad v. Perkins, 17 Mich. 296; Railroad v. Daggett (Tex. Civ. App.) 27 S.W. 186; Railroad v. Pasture Co., 23 S.W. 754; Railroad v. Donovan, 86 Tex. 378; Fairley v. Smith, 87 N.C. 367, 42 Am. Rep. 522; to same effect is 70 U.S. (3 Wall.) 114. (3) The alleged contract offered by defendant was rightfully excluded. Gann v. Railroad, 72 Mo.App. l. c. 38 and 39; Harrison v. Railroad, 74 Mo. 364; Miller v. Railroad, 62 Mo.App. 252; McCullough v. Railroad, 34 Mo.App. 23.
This action was brought before a justice of the peace to recover damages resulting from the breach of a verbal contract alleged to have been made by the parties, by which defendant undertook and agreed to furnish plaintiffs four stock cars at a certain time and place for the shipment of seventy-seven head of cattle to market. On appeal, the case was tried in the circuit court resulting in a judgment in favor of plaintiffs, from which defendant appealed. Facts appearing in evidence are as follows:
Plaintiffs, who are stock shippers living near Sturgeon, applied to defendant's agent at that point for four cars in which to ship the cattle from Sturgeon to St. Louis. After some delay, the agent agreed to have the cars at the stock pens on a certain day in time for the shipment to go forward in a certain train and directed plaintiffs to have their cattle in the pens so that they could be loaded into the cars before the arrival of this train. Following this direction, plaintiffs drove their cattle in from the country and placed them in the pens as directed, but the promised cars failed to arrive, and were not received until after the lapse of five days from the appointed time. In the meantime, plaintiffs were compelled, in order to properly feed and care for the cattle, to remove them from the railroad pens to feed lots. Expense was incurred for feed and attention; the cattle suffered a loss in weight and the market declined. When the cars arrived, plaintiffs changed the destination of the shipment from St. Louis to Chicago and entered into a written contract with defendant for their transportation to the stockyards in the latter city, where they were delivered by defendant and sold on the market by plaintiffs.
One of the errors assigned by defendant is the refusal of the trial court to admit in evidence the written contract providing for the carriage of the cattle to Chicago. This contract was signed by both parties and, under its terms, defendant received the cattle for transportation to the destination named "at the rate of eighteen and one-half cents per cwt., which is a reduced rate expressly agreed upon between the parties hereto, and in consideration of which rate, the party of the second part (plaintiffs) stipulates and agrees as follows: . . . Eighth, . . . and in consideration of said rate herein named, the shipper hereby releases and waives any and all cause or causes of action that may have accrued to him by reason of any written or verbal contract prior to the execution of this contract." Defendant, in its answer, pleaded this condition as a waiver of the cause of action sued upon and tendered the issue that the rate provided was, in fact, a reduced rate and therefore a sufficient consideration for the waiver. We are of the opinion that the verbal agreement made by the parties constituted a contract, which imposed a duty upon defendant to furnish the cars as agreed, and that in consequence of a breach of that duty defendant became liable to plaintiffs for the damages thereby sustained. We agree with plaintiffs that the liability thus incurred had matured at the time the written contract was made, but it does not follow, as plaintiffs seem to think, that the accruement of their cause of action in any manner prevented its release in a subsequent contract made between the parties. The authorities cited by plaintiffs go no further than to hold that a verbal contract, such as the one before us, upon which a cause of action has accrued, does not merge into a subsequent written contract made by the parties in the absence of a stipulation providing for the release of the damages. [Gann v. Railroad, 72 Mo.App. 34; Harrison v. Railroad, 74 Mo. 364; Miller v. Railroad, 62 Mo.App. 252.] In a case recently decided by this court...
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