Gulf, C. & S. F. Ry. Co. v. Jackson & Edwards

• Decision Date: 18 January 1905
• Citation: 86 S.W. 47
• Parties: GULF, C. & S. F. RY. CO. v. JACKSON & EDWARDS.
• Court: Texas Court of Appeals

Page 47

86 S.W. 47

GULF, C. & S. F. RY. CO. v. JACKSON & EDWARDS.

Court of Civil Appeals of Texas.

January 18, 1905.

On Rehearing, March 22, 1905.

Error from District Court, Lampasas County; John M. Furman, Judge.

Action by Jackson & Edwards against the Gulf, Colorado & Santa Fé Railway Company. Plaintiffs had judgment, and defendant brings error. Affirmed.

Matthews & Browning, J. W. Terry, and Lee & Goree, for plaintiff in error. Walter Acker, for defendants in error.

FISHER, C. J.

This is a suit by Jackson & Edwards to recover of the railway company damages for the breach of a contract for the shipment of cattle from Lampasas to Halls and Sapulpa, Ind. T., in the amount of $6,970. Verdict and judgment were in defendants in error's favor for $4,000.

Plaintiffs, in their petition, alleged: That on or about the 1st day of March, 1902, the defendant, acting by and through its live stock agent, J. I. Conway, made and entered into the following parol contract with the plaintiffs: That for and in consideration of the regular freight charges, to be paid by the plaintiffs to the defendant, defendant would receive from the plaintiffs at Lampasas, Tex., about the middle of April, 1902, about 3,000 head of cattle, to be by defendant safely transported from Lampasas to Halls and Sapulpa, in the Indian Territory, in special, solid stock trains, unmixed with other cars of freight, the trains to be carried and drawn by a single engine each, and that it (the defendant) would furnish all cars and equipment necessary for the safe and proper receiving, loading, transporting, and unloading said cattle, and deliver them in sound and proper condition at their destination in 27 hours after leaving Lampasas. The defendant then contracted and agreed to place in position at its stock pens at Lampasas, upon reasonable notice to be thereafter given by the plaintiffs, a sufficient number of suitable cars for the transportation of said cattle as cars might be needed for that purpose; and defendant then expressly contracted and agreed with plaintiffs that, in transporting said cattle, defendant would not use double-header trains— that is, trains drawn by two engines each. That plaintiffs were the owners of 2,053 head of cattle included in said contract, the balance being the property of other parties for whom the plaintiff acted—1,000 head of plaintiffs' cattle being near Marble Falls, on the Houston & Texas Central Railway, about 40 miles from Lampasas—and plaintiffs were induced to drive their cattle to Lampasas by virtue of the contract. That plaintiffs notified defendant to have cars in readiness to ship about 2,300 head of the cattle April 15th, as soon as it was light enough to do so. That they had their cattle ready for loading at that time. That the defendant sent two trains, of 35 cars each, drawn by two engines; none of the cars being bedded or prepared for receiving cattle. The bedding of the cars caused a delay, resulting in a delay at that time to the cattle. That plaintiffs protested against the use of double-header trains, and insisted on the contract to have their trains drawn by single engines; but the defendant forced the plaintiffs to ship in double-header trains, in violation of the contract, or not ship at all. That, in violation of the contract, defendant attached other cars to the train along the road, thereby delaying the movement of the cattle, and subjecting them to rough treatment and delay and jerking. That the first train consumed 32 hours in the run to Halls, resulting in the plaintiffs having to unload the cattle at night and turn them loose in the open country, the defendant having failed to provide at Halls pens for receiving and unloading the cattle, which resulted in scattering the cattle, and expense in gathering, etc. That the second train consumed 42 hours in making the trip—all to plaintiffs' damage $6,970.

The defendant answered by general and special exception, general denial, and special plea setting up, among other things, that, if Conway undertook to make any such contract as set up in the petition, he acted wholly without authority, either express or implied, and that his contract was not binding upon the defendant, and particularly that Conway was not, and never was, a general officer of the defendant, but an officer of limited power and authority; that he never had any authority on behalf of defendant to make any contract such as pleaded by plaintiffs, to wit, a contract to carry to Halls and Sapulpa, said points being beyond the line of defendant's road—the defendant never having contracted to carry cattle or other freight beyond its own lines, and never having authorized any of its agents to so contract, but, to the contrary, having always, by every means in its power, endeavored to restrict its liability to its own line, to avoid the appearance of contracting to carry beyond its own line. Also pleaded that the contract to carry stock in special, solid trains was unauthorized on the part of its agents, and that it never authorized Conway to make such contract, and it was not a part of his duty to contract as to the way live stock or other freight should be handled, and that he had no rights in regard to such matters, and such matters are wholly out of his department. Also pleaded that to agree to carry cattle within 27 hours, and deliver them in sound and proper condition, Conway was wholly without authority to so contract, and defendant had never held out or authorized its agents to deliver within specified time, but it always refused to make any such contract; that Conway had no authority to contract to transport the cattle in single-header trains, and not in double-header trains; and that it never authorized any agent to make any such contract. The defendant then pleaded the usual written contracts required to be signed and executed by railway companies in the transportation of stock. These contracts were 30 in number, each covering two cars, the same being described; and these contracts provided that the liability of the defendant and each of the other carriers was to be limited to its own line; that the defendant properly carried the cattle to Purcell, Ind. T., which is the end of its line, and there delivered the same to its connecting carrier, the Atchison, Topeka & Santa Fé Railway Company. This contract contained the usual stipulation that all prior agreements concerning the furnishing of cars and facilities for said shipment, or concerning the transportation, were merged and contained in the written contract, and that the written contract contained all the terms, conditions, and provisions relating in any manner to the shipment and transportation of the stock. And further pleaded a provision wherein it was stated that the shippers should be estopped from setting up any other or different contract than that contained in the written agreement.

Plaintiffs replied by supplemental petition, by pleading a general denial, and further that the written contracts described by the defendant were not the contracts under which the cattle were shipped, but that they were shipped under the parol contract made with Conway; that the written contracts described were a part of the consideration of the parol contract set up in the plaintiffs' petition, and that they were accepted by the plaintiffs as passes for themselves and their employés who accompanied their stock in transit and returned to Texas, and for that purpose only; that they accepted such instruments without notice or suspicion that the defendant intended thereby to change or supersede the original parol contract, and, if the plaintiffs have signed said 30 instruments, they did so after their cattle had been delivered to and received by defendant under and in pursuance of the parol contract, and without reading the said written contract, and under the impression and belief that they were delivered to them for the purpose of transportation only, and they were by the plaintiffs so accepted and received; and that, if the said 30 instruments are taken and considered as contracts, then the plaintiffs say the same are without any consideration to support them, and therefore not binding on the plaintiffs; that, if Conway exceeded his authority in making the contract set up in the plaintiffs' petition, they were without knowledge of any limitation upon his authority; and that such contract was within the apparent scope of his authority, but, whether it was or was not within the scope of his apparent authority, the defendant wholly and fully ratified the same, and received and accepted the benefits therefrom.

To this supplemental petition the defendant replied by supplemental answer, reurging many matters set up in its original answer, and denied specially ever having ratified the purported parol contract, and averred that it never heard of such purported contract until long after the shipment was made, and denied specially that Conway had ever been held out as having any authority to make any such contract, and averred that the plaintiffs did know that he had no such authority, or, in the exercise of diligence, could have so known, and that for years the defendant had held out to the world that only a general officer of defendant, and he only in writing, had authority to contract to transport stock beyond the line of defendant's road, or deliver in any specified time or in any particular train, or in any particular class or kind of cars, and that notice of such want of authority had been given to the public for years, in the tariffs in the live stock contracts used by the shippers, and in other ways, and that the plaintiffs had ample means to know of such want of authority; that there were two rates in existence at the time that the plaintiffs' stock moved, and had been for years, on live stock—one predicated on the common-law liability of the carrier, and the other where the limitations of the liability of the carrier were...