H. Rouw Co. v. Texas & N. O. R. Co.

• Decision Date: 24 June 1953
• Docket Number: No. 12574,12574
• Parties: H. ROUW CO. v. TEXAS & N. O. R. CO
• Court: Texas Court of Appeals

Page 130

260 S.W.2d 130

H. ROUW CO. v. TEXAS & N. O. R. CO.

No. 12574.

Court of Civil Appeals of Texas, San Antonio

June 24, 1953.

Rehearing Denied July 22, 1953.

James E. Little, Edinburg, for appellant.

Kelley, Looney, McLean & Littleton, Edinburg, Baker, Botts, Andrews & Parish, Houston, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by the H. Rouw Company against the Texas & New Orleans Railroad Company of recover damages in the sum of $242.57 on a shipment of tomatoes made in interstate commerce from Edinburg, Texas, to Philadelphia, Pennsylvania. The case was tried to the court without the intervention of a jury and resulted in the court sustaining the defendant's plea of limitation and rendering judgment that plaintiff take nothing, from which judgment the H. Rouw Company has prosecuted this appeal.

It is stipulated by the parties that the plaintiff was entitled to recover the $242.57, together with interest, unless said claim was barred by limitation.

The carload of tomatoes was shipped from Edinburg, Texas, on May 21, 1949. On December 6, 1949, appellant filed with appellee a claim for damages in the sum of $262.66. On October 10, 1950, appellee wrote appellant concerning this claim, in part as follows:

'Upon checking the basis used for claim determination, find that the market for U. S. No. 2 tomatoes, Philadelphia, May 31st, was $2.50, leaving a loss as claimed of $263.66. However, this item is subject to reduction by the 8% unearned commission of $21.09, or a net loss and payment due you $242.57.

'Authorize amendment to $242.57, and payment will be made. Any amount in excess is respectfully declined.'

On January 15, 1951, appellee wrote appellant in part as follows:

'It is our desire to clear this unadjusted item from our account as quickly as possible, however, until we are in receipt of your authorization amending your claim as outlined in the attached, I regard to advise that no further action can be taken.'

On November 3, 1952, appellant wrote appellee in part as follows:

'This will be your authority to forward your voucher for the sum of $242.57 in settlement of the claim, as per your letter of October 10, 1950.'

The question here presented is, whether or not appellee's letter of October 10, 1950, amounted to a disallowance of appellant's claim, or a part thereof, such as would start the running of the statute of limitations, and which would bar this suit after a period of two years and one day, under the provisions of the Commerce Act, Title 49, § 20(11), and the provisions of the Uniform Bill of Lading required by the Interstate Commerce Commission, this shipment having been made on such Uniform Bill of Lading. Appellant's contention is that inasmuch as this suit was filed for the sum of $242.57, the amount which appellee indicated in the letter of October 10, 1950, it was willing to pay, that same was not barred by the period of limitation above mentioned. Appellant contends that for a period of from ten to twenty years appellant and appellee had been construing the provision...