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

Decision Date08 June 1911
Citation139 S.W. 16
CourtTexas Court of Appeals
PartiesGULF, C. & S. F. RY. CO. v. COULTER.

Action by H. W. Coulter against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Terry, Cavin & Mills and Lee & Lomax, for plaintiff in error. Hunter & Hunter, for defendant in error.

HODGES, J.

In March, 1908, the defendant in error, H. W. Coulter, instituted this suit against the plaintiff in error to recover damages for injuries to a shipment of billiard tables and fixtures while being transported from Ft. Worth to Philadelphia. In substance, the petition alleges that at the time the goods were delivered for transportation the plaintiff expressly directed that they be routed via St. Louis over the Vandalia line of railroad through Indianapolis, and on to Philadelphia, to which routing the defendant agreed; that it was further agreed that the goods were to be shipped in one large car 50 feet long, for which the freight charges were to be $230, but that defendant, without plaintiff's consent and over his objection, placed them in two smaller cars; that, in order to obviate plaintiff's objection, the defendant agreed that the two cars should both go at the same rate of freight as the one large car which it had agreed to furnish; that the freight charges were tendered in advance, but refused on the ground that it was customary to collect them at destination. The value of the goods was placed at $10,000 at Ft. Worth and Philadelphia. It was also averred that the defendant failed to route the goods via St. Louis over the Vandalia line, but sent them over the Atchison, Topeka & Santa Fé Railway, it being under the same ownership, management, and control, and at Chicago delivered them to the Pennsylvania Railway, which, in turn, delivered them to the Philadelphia & Reading Railway, by which company they were delivered at Philadelphia June 26, 1907, being en route since May 2d. It is alleged that plaintiff went from Indianapolis and from there to Philadelphia, and, being unable to locate his goods, spent the sum of $300 in telegraphing and traveling in his efforts to find them; that, when they were tendered to him at Philadelphia, be at first refused to receive them and pay the freight bill of $549.69 charged against them, but later, and without knowing the condition of the goods, paid the freight charges and took possession of his property; that upon inspection he found that the goods had been greatly damaged, rendering them almost worthless; that after having received them he was compelled to store them at a cost of $24 per month. The petition also avers a tender of the goods back to the defendant, and concludes with a prayer for damages in the sum of $20,000. By an amendment to the original petition, filed November 8, 1909, plaintiff added the following averments: That he had conditionally sold the goods to Grant H. Eby for $7,000, who had arranged to set them up in Detroit, and had by letter requested the plaintiff to route them via St. Louis over the Vandalia line to Indianapolis, at which last-named city plaintiff was to have the right to divert the goods to Detroit; that of this sale defendant was fully informed at Ft. Worth before and at the time it received the goods and issued the bill of lading; that at the time the defendant received the goods for shipment and after the written receipt, or bill, was issued, and Eby's letter was shown to defendant and its shipping agents at Ft. Worth, it was distinctly understood and agreed that the goods should be shipped and routed as requested; that after opening the goods at Philadelphia he offered them to Eby, to whom they had been sold for $7,000 upon condition that they were delivered in as good condition as when shipped from Ft. Worth, proposing to Eby that he (plaintiff) would reship them to Indianapolis or Detroit as Eby might request, but that upon examining the goods Eby pronounced them worthless and refused to accept them at any price; that on arrival of the goods at Philadelphia they were not worth over $1,200 on account of their injured condition, and plaintiff was compelled to sell them for that sum after paying $300 storage bills. The defendant answered by general denial and other special pleas not necessary here to notice. A verdict was returned in favor of the plaintiff for the sum of $5,800, with interest thereon at the rate of 6 per cent. per annum from June 27, 1907, upon which verdict the court entered a judgment in favor of the plaintiff for $6,760.

From portions of the testimony which is not disputed it appears that Coulter had formerly lived in Philadelphia, and some time during the year 1905 he was induced by one L. J. Gouffe, who was at that time residing at Ft. Worth and engaged in running a billiard hall, to come to Texas and take charge of his (Gouffe's) business. Coulter came, and afterwards married Gouffe's daughter, and in the course of time acquired ownership of the property in controversy. In 1907, as he testified, on account of some Texas legislation which injuriously affected his business, he determined to leave Ft. Worth and move to another state. Grant H. Eby was an expert billiard player, and during the time that Coulter had charge of the billiard hall at Ft. Worth came to that place and gave some exhibitions of his skill. Some of those performances took place at Coulter's hall, and in this way the two became acquainted. Negotiations were opened between them for the sale and purchase of the billiard property owned by Coulter. According to Coulter's testimony, before shipping the goods, as alleged in the petition, he received the two following letters from Eby:

"New York City, April 7th, 1907. Mr. H. W. Coulter, Fort Worth, Texas — Dear Persey: Arrived in New York yesterday, the 6th, from New Orleans. I had hoped to stay in New Orleans for a long time, but Mrs. Eby not being well, I thought it best to get home. Am now in a position to do business with you. Your goods as I saw them last month surprised me. You certainly know how to take care of your tables. I am not trying to hand you hot air, but speaking frankly, from my experience around the country, you are an exception to the rule. As I have to settle down and quit this running around the country for Mrs. Eby's sake, I will take your proposition, but the best that I can absolutely do is $7,000, goods delivered to me at destination; this means you pay the freightage; of course, you know I am not a millionaire; make it in the neighborhood of $3,000, the notes to be as low as you can make them. Would suggest that you have a suitable contract drawn up by some good attorney, and I will see to it being properly executed at this end. Give me instructions how you wish the cash transferred, who are your bankers, and with what bank do they do business here. Now as to my location, Detroit is a crackerjack city, and I made a big hit when I was there last. In all probability Detroit will be my choice. Of course I have to be governed by my ability to find a suitable location there. Indianapolis is just getting the fever, so if I cannot get what I want in Detroit, I no doubt will in Indianapolis. If I do not succeed in Indianapolis, I will do so somewhere in the vicinity. In a few days I will leave here for Detroit, as the new hotel there is open, and it might possibly be that I can get this opening. Remember me to the family. Your friend, Grant H. Eby."

"Detroit, April 24th, 1907. Mr. W. H. Coulter, Fort Worth, Texas — Friend Persey: Yours enclosing contract at hand. The tone and general run of the things make me believe you have changed your mind about selling. If this is the case, do not have any hesitancy about telling me. You know, Perc, I told you in my last letter that as yet I was not a millionaire, and to be moderate with your cash price. You know I have to live while I am making good, as I only have a small amount of capital, so it makes it absolutely impossible for me to meet your demand of $4,000. Pardon me for being so frank, but by the talk you gave me at Fort Worth, I took it you wanted to treat me liberally. The face of those notes, reading $200, is really a joke. You know, old fellow, as well as I do, that I could not possibly pay that sum every thirty days out of the receipts of a place just new opened. There is only one way you and I can straighten this thing out, and that is for us to get together personally. I haven't any doubts whatever that you will see it my way; in fact, my whole confidence is based on your so doing, and then, too, I know you want me to have the goods. Pers, $3,000 is all that I can do, and the notes should not read more than $75.00, but we will leave the matter rest until we can see each other. I have succeeded in picking out a place here in Detroit, but it will not be vacant until some time in August. The fellow promised to fix it up nicely for me, should I take it, giving me first option on it. In the exhibition given here last night I filled the hall, as usual. When you ship the goods, do so by the Vandalia R. R. from St. Louis to Indianapolis, only paying the freightage that far, as I would like to look Indianapolis over before deciding upon Detroit. Be sure of the crating; have the Brunswick-Balk Co. do it. Write me immediately upon receipt of this in care of the Brunswick-Balk, Chicago, as I will leave Chicago for New York about the first. Expecting your favorable reply. Your friend, Grant H. Eby."

Coulter further testified that, before tendering the goods for shipment, he had one or more conversations with plaintiff in error's agents at Ft. Worth regarding the routing and the freight rate that would be charged; that during one or more of those conferences he exhibited to the plaintiff in error's agents the two letters above quoted, and stated to them that his purpose...

To continue reading

Request your trial
4 cases
  • Coulter v. Gulf, C. & S. F. Ry. Co.
    • United States
    • Texas Court of Appeals
    • 25 Noviembre 1922
    ...This is the second appeal in this case, the decision of the former appeal being by the Texarkana Court of Civil Appeals and reported in 139 S. W. 16. That decision, rendered June 8, 1911, reversed and remanded the judgment rendered for the plaintiff on a former trial for the sum of It is st......
  • Houston, E. & W. T. Ry. Co. v. Brackin
    • United States
    • Texas Court of Appeals
    • 4 Diciembre 1916
    ...objection, that Ziegler stated to the witness, "The car of potatoes was worthless." The rule is, as laid down in the case of G., C. & S. F. v. Coulter, 139 S. W. 16: "In an action against the carrier for loss of a contract for the sale of goods due to their delivered in a damaged condition,......
  • Coulter v. Gulf, C. & S. F. Ry. Co.
    • United States
    • Texas Court of Appeals
    • 5 Diciembre 1925
    ...Lomax & Wren, of Fort Worth, for appellee. BUCK, J. This is the third appeal of this case, the decision of the first appeal being found in 139 S. W. 16, rendered by the Texarkana Court of Civil Appeals, the decision in the second appeal being found in 248 S. W. 788, rendered by this court, ......
  • McCollum Exploration Co. v. Reaugh
    • United States
    • Texas Court of Appeals
    • 25 Septiembre 1940
    ...the sale; under these circumstances, the undertaking is special and the loss and liability are special." In Gulf, C. & S. F. Ry. Co. v. Coulter, Tex.Civ.App., 139 S.W. 16, 20, it is said: "Assuming that Coulter had a contract with Eby for the sale of the goods, that he had given sufficient ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT