Gulf, W. T. & P. Ry. Co. v. Browne

• Citation: 66 S.W. 341
• Parties: GULF, W. T. & P. RY. CO. et al. v. BROWNE.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 06 January 1902
• Court: Court of Appeals of Texas

Page 341

66 S.W. 341

GULF, W. T. & P. RY. CO. et al. v. BROWNE.¹

Court of Civil Appeals of Texas.

January 6, 1902.

Appeal from Goliad county court; M. W. Fowler, Special Judge.

Action by N. H. Browne against the Houston Cotton Oil Company, in which the Galveston, Harrisburg & San Antonio Railway Company and the Gulf, Western Texas & Pacific Railway Company were brought in as parties defendant on the petition of the original defendant. Judgment for plaintiff against the original defendant, and in favor of the latter over against the other defendants, and certain defendants appeal. Affirmed.

Proctors, for appellant railway company. G. E. Pope, for appellant oil company. Bell & Browne, for appellee.

GARRETT, C. J.

N. H. Browne brought suit in the county court of Goliad county against the Houston Cotton Oil Company, a corporation under the laws of the state of Texas, with its domicile in Harris county, for the recovery of the agreed price of two car loads of cotton seed sold to it by the plaintiff, and delivered free on board the cars of the Gulf, Western Texas & Pacific Railway Company at Goliad for shipment to the oil company at Houston. The oil company had no agent in Goliad county. The contract of sale was made with the plaintiff by one Swift, an agent of the oil company, by telephone from Cuero. Browne required payment for the seed in cash, and Swift requested him to draw upon the oil company for the price of each car load, less one ton for the correction of weights at the defendant's mill, with bills of lading attached, which he did through a bank at Goliad. The drafts and bills of lading were sent by the bank to Galveston, and the seed were shipped on the morning of September 8, 1900. The great storm of that date having occurred, Browne directed the railway company to deliver the seed to the oil company without presentation of the bills of lading. The seed were tendered to the oil company by the Galveston, Harrisburg & San Antonio Railway Company, to which it had been delivered in course of transportation; but the oil company refused to accept them because they were rotten and unsound, and refused to pay for them. The defendant oil company first pleaded to the venue of the suit, and, further answering the plaintiff's cause of action, it denied that the contract was for the sale and delivery of the seed at Goliad, but alleged that, on the contrary, it was for the delivery of the seed on board cars in the city of Houston, Harris county, and alleged that the seed were to be sound, dry seed, for use in the manufacture of cotton seed oil, but that plaintiff, disregarding his agreement, shipped and offered to deliver to the defendant seed which upon their arrival in Houston were found to be rotten and entirely worthless, and the defendant refused to receive the same, and so notified the plaintiff. It pleaded further that the cars containing said seed were tendered to it by the Galveston, Harrisburg & San Antonio Railway Company, and that, immediately upon finding out the condition of the seed, it notified said railway of its refusal to accept the same, and ordered that they be sold for the best price obtainable, the proceeds to be held for whom it might concern; that the seed were sold by the defendant by the direction of the railway company, and the proceeds, $112.88, were delivered to the railway company; and the defendant prayed that the Galveston, Harrisburg & San Antonio Railway Company might be made a party to the suit, for the purpose of determining the ownership of the money held by it. The answer also contained the following allegations making the appellant Gulf, Western Texas & Pacific Railway Company a party to the suit: "Defendant would further show to the court that heretofore, to wit, on the 8th day of September, 1900, the cotton seed referred to in plaintiff's petition were by plaintiff, N. H. Browne, delivered at Goliad, Texas, to the Gulf, Western Texas & Pacific Railway Company, a railway corporation duly incorporated under the laws of the state of Texas, and a common carrier for hire, having a local agent at Goliad, to wit, A. H. Williams, as defendant is informed, and so believes, and now charges, for the purposes of the alternative prayer hereinafter made, in good, sound condition, to be transported by said railway company, for a valuable consideration stipulated to be paid to said railway company, with dispatch and caution, from said town of Goliad, in Goliad county, to the city of Houston, in Harris county, Texas, and there to be delivered to this defendant in good, sound condition, but that said Gulf, Western Texas & Pacific Railway Company, disregarding its contract so to do, negligently failed to transport and deliver said seed with diligence, dispatch, and caution, and said seed were delayed en route to said Houston, Texas, far beyond the time ordinarily and necessarily consumed in the transportation of freight from Goliad to Houston, and that by reason of said long delay in transportation, and the negligent handling of said seed while being transported, and the defective condition of the cars in which said seed were being carried, the exact nature and character of any or of all of which this defendant is unable to state, the said seed became and were wet, heated, and spoiled, and were entirely rotten and worthless to this defendant when they reached the said city of Houston and were tendered to defendant, and on account thereof defendant refused to receive said seed from said railway company. Defendant therefore prays that said Gulf, Western Texas & Pacific Railway Company be made a party to this suit. Premises considered, defendant prays that citation issue to said Galveston, Harrisburg & San Antonio Railway Company and the Gulf,...