Gulf, C. & S. F. Ry. Co. v. Hume

• Decision Date: 14 June 1894
• Citation: 27 S.W. 110
• Parties: GULF, C. & S. F. RY. CO. v. HUME et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

27 S.W. 110

GULF, C. & S. F. RY. CO. v. HUME et al.¹

Supreme Court of Texas.

June 14, 1894.

Error from court of civil appeals of third supreme judicial district.

Action by Hume Bros. against the Gulf, Colorado & Santa Fe Railway Company for damages to certain cattle resulting from defendant's delay in shipping them. A judgment for plaintiffs was affirmed by the court of civil appeals (24 S. W. 915), and defendant brings error. Reversed.

J. W. Terry, for plaintiff in error. Willingham & Jenkins, Powell & Smith, and West & Cochran, for defendants in error.

BROWN, J.

Hume Bros. sued the Gulf, Colorado & Santa Fe Railway Company to recover damages for the breach of a verbal contract alleged to have been made by the station agent of the railroad company at Ballinger with the plaintiffs, whereby the railroad company agreed to furnish to plaintiffs cars to ship a large number of cattle on a certain day. It is alleged that plaintiffs, in pursuance of the contract, drove the cattle to Ballinger, and, on the day agreed upon, were ready to ship them; but the railroad company failed to furnish the cars, and did not furnish them for a number of days thereafter, by which Hume Bros. were compelled to hold their cattle at great expense, and that the cattle were, by reason of such holding, greatly depreciated in value. The railroad company filed a general denial and special pleas, which will be mentioned in the opinion in discussing the questions raised upon them. Upon trial in the district court, judgment was rendered against the railroad company, which was affirmed by the court of civil appeals (24 S. W. 915), and is now before this court on writ of error, upon the following objections to the judgment: First. That the district court erred in sustaining plaintiffs' exceptions to defendant's answer, setting up the stipulation in the contract of shipment that suit must be filed and service had of citation within 40 days. Second. That the court erred in charging the jury that the railroad company was bound by the contract to furnish cars to plaintiffs at a certain time, if it was made by the station agent of the company, and in refusing special charges asked by defendant, and also in excluding evidence which was offered by defendant to prove that the agent did not have authority to make the contract. Third. In excluding evidence to show that the shipment of cattle at that time was so heavy that the railroad company had not sufficient cars to supply the demand, for which reason the delay occurred in furnishing cars to plaintiffs. Fourth. Admitting evidence as to effect of market in the territory on market at Ballinger. Fifth. In the charges given on measure of damages, and in refusing to give charges upon the same subject requested by the defendant. The defendant pleaded that, for a valuable consideration, there was inserted in the shipping contract a clause by which it was agreed between it and plaintiffs that, for the recovery of damages in certain cases, including the character of plaintiffs' claim, no suit should be maintained in any court, unless it was instituted and service of citation had within 40 days after the damages accrued. Plaintiffs excepted to this part of the answer, and the district court sustained the exception, which is assigned as error.

Two questions arise upon this assignment: (1) Was the stipulation unlawful in whole or in part? (2) If unlawful in part only, does the unlawful part render the clause void as a whole?

It was lawful for the defendant, by agreement with plaintiffs, to fix a reasonable time shorter than that allowed by law within which suit must be filed. Railway Co. v. Trawick, 80 Tex. 270, 15 S. W. 568, and 18 S. W. 948. Forty days has been held to be reasonable, under the facts of the cases in which the question arose. The reasonableness of the time fixed is generally a question of fact, to be determined by the jury. The requirement that service of citation must be made within a given time rests upon a different ground. It is not a question whether or not the time agreed upon is reasonable, but is it a subject about which the parties could contract? Upon the filing of a petition, it is the duty of the clerk to forthwith issue the citation, and the duty of the officer to whom it is delivered is to serve it without delay. Rev. St. arts. 1213, 1218. When the plaintiff delivers his petition to the clerk, he has no further legal control over the action of the officers. The law secures to the plaintiff and defendant the benefit of vigilance in serving the citation. It is not an act to be performed by the plaintiff, or any one under his direction or control. We have found no case involving this question. The general rule, however, is settled by the authorities that an officer cannot contract to receive compensation for services in addition to those prescribed by law. Neither can he bind himself to accept less than the law allows him, nor to waive the remedy for collection provided by law. Mechem, Pub. Off. §§ 374, 376-378. This is placed upon the ground that, the compensation being prescribed by law, it is against public policy that it should be the subject of contract between the officer and litigants. The duties of public officers in issuing and serving citations are prescribed by law, and it would seem that for the same reason any contract between third parties which would involve any interference with the regular discharge of those duties, or that would impose liability for a failure of an officer to discharge them with vigilance, would be equally against public policy and void. The part of the stipulation requiring service of citation to be made within 40 days was void. When one, for a legal and valuable consideration, agrees to perform two acts, which are severable, one of which is lawful and the other unlawful, the contract may be enforced as to that for which it was lawful to contract, and held void as to the other. But when the two things to be done are so blended that they cannot be separated, one lawful and the other not, the whole contract is void. Ohio v. Board of Education, 35 Ohio St. 519; Gelpcke v. Dubuque, 1 Wall. 221; Presbury v. Fischer, 18 Mo. 50; U. S. v. Bradley, 10 Pet. 343; Hynds v. Hays, 25 Ind. 31. One period of time is by this agreement designated within which two things are to be done. No part...