Galveston, H. & S. A. Ry. Co. v. Schmidt

• Decision Date: 24 January 1894
• Citation: 25 S.W. 452
• Parties: GALVESTON, H. & S. A. RY. CO. v. SCHMIDT.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

25 S.W. 452

GALVESTON, H. & S. A. RY. CO. v. SCHMIDT.¹

Court of Civil Appeals of Texas.

January 24, 1894.

Appeal from Guadalupe county court; James Greenwood, Judge.

Action by Hermann Schmidt against the Galveston, Houston & San Antonio Railway Company. There was judgment for plaintiff, and defendant appeals. Affirmed.

Upson & Bergstrom, for appellant. Ireland & Dibrell, for appellee.

JAMES, C. J.

This was a suit to recover of appellant damages for refusal to transport cotton seed belonging to the Kingsbury Co-Operative Association from Kingsbury to Galveston, Tex., the plaintiff having become the owner of the demand. The petition alleges that the cotton seed designed for shipment was deposited, properly prepared for shipment, at the appellant's station at Kingsbury, on October 2, 1889, and that on said day, and repeatedly afterwards, he applied to appellant's agent at Kingsbury for cars in which to ship the seed, which defendant failed and refused to furnish until in January, 1890, when the seed was transported, and that plaintiff sustained a loss of $2 per ton for the 130 tons of seed, by depreciation in market values during the said delay. The prayer was for this amount and interest. The judgment was for $260.

By the assignments of error, it is claimed that the suit is one for damages for refusing to furnish cars, and that there is no allegation that demand was made in writing therefor, and no part of the freight charges deposited or tendered, according to the provisions of article 4227a, § 1, Sayles' Rev. Civ. St., and the proof was that no written demand was made, and no part of the freight charges tendered. We are of opinion that article 4227a does not apply in this case. The penalty authorized to be recovered by said article is not sued for, and the supreme court has virtually declared that the purpose of this article was to provide for the recovery of the penalty. McCarty v. Railway Co., 79 Tex. 38, 15 S. W. 164. The present suit was to recover damages sustained by the refusal of the appellant to take and transport the property which appellee applied to have carried, which brings it within the provisions of articles 4226 and 4227.¹ The pleadings and testimony show that the cotton seed was offered for transportation at the station at Kingsbury, and that plaintiff was ready and willing to pay the charges, and that defendant, on the request being made for cars for the purpose of transporting same, refused to do so; and the ground for...