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

• Decision Date: 01 December 1909
• Citation: 123 S.W. 200
• Parties: GALVESTON, H. & S. A. RY. CO. v. QUILHOT.
• Court: Texas Court of Appeals

123 S.W. 200

GALVESTON, H. & S. A. RY. CO. v. QUILHOT.

Court of Civil Appeals of Texas.

December 1, 1909.

Appeal from Guadalupe County Court; H. M. Wurzbach, Judge.

Action by W. Quilhot against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

Baker, Botts, Parker & Garwood and Dibrell & Mosheim, for appellant. Seideman & Short, for appellee.

FLY, J.

Appellee sued appellant to recover damages in the sum of $551, alleged to have accrued by the loss of certain silver, cut glass ware, and other property, which was delivered by appellee to appellant for transportation from Seguin, Tex., to Amsterdam, N. Y. Appellant filed general and special demurrers, and answered by general denial and specially that it received from appellee a box of glass and a barrel of clocks, and that the appellee did not disclose the extraordinary value of the contents of said box and barrel, and that it was not liable for the high values placed thereon. The cause was tried without a jury, and resulted in a judgment for appellee in the sum of $551.

The general demurrer was properly overruled. The special exceptions, however, which assailed the sufficiency of the description of the property, were meritorious, and should have been sustained by the court. "One chest of silver" does not disclose with sufficient clearness the character of the property, and neither can the descriptions of other articles which do not disclose even the material out of which they were made answer the demands of special demurrers aimed at them. "One punch bowl, one H. P. vase," and "two C. G. bowls" give a very poor indication of what is intended, and the whole of the property could and should be more clearly described. When the cause was called for trial, appellant filed an application for a continuance on the ground of the absence of J. M. Abbott, the father-in-law of appellee, who lived in Seguin, and who had bought the chest of silver, valued by appellee at $300, by whom it was expected to be shown that he bought the chest of silver and presented it to the wife of appellee, and that the value of the chest was $175 instead of $300. Appellant used diligence to obtain the attendance of the witness, and it appears that it was appellant's first application for a continuance. The evidence was material, and the continuance should have been granted. The suit was instituted on November 5, 1908, about two months before the trial, and the witness being a resident of Seguin, and being there at the time, it was sufficient diligence to issue a summons for him on January 11, 1909, the day preceding the trial. The court did not place his refusal to grant the continuance on...