Houston & T. C. R'Y Co. v. Jackson

• Decision Date: 17 October 1884
• Docket Number: Case No. 1653.
• Citation: Houston & T. C. R'Y Co. v. Jackson, 62 Tex. 209 (Tex. 1884)
• Court: Texas Supreme Court
• Parties: HOUSTON & T. C. R'Y CO. v. M. L. JACKSON.

62 Tex. 209

HOUSTON & T. C. R'Y CO.

v.M. L. JACKSON.

Case No. 1653.

Supreme Court of Texas.

Oct. 17, 1884.

APPEAL from Limestone. Tried below before the Hon. L. D. Bradley.

Geo. Goldthwaite, for appellant.

A. C. Prendergast, for appellee.

L. J. Farrar, also for appellee, on the question of interest, cited: R. S., art. 283; Wolfe v. Lacy, 30 Tex., 349;Fowler v. Davenport, 21 Tex., 635;Chicago R. R. Co. v. Ames, 40 Ill., 249; Wait's Actions and Defenses, vol. 4, pp. 138-9.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by the appellee to recover from the appellant, a common carrier, damages alleged to have been incurred by the plaintiff in consequence of the failure of the appellant to transport with reasonable dispatch a large number of bales of cotton delivered to it by him to be carried to the city of Galveston and there delivered to P. J. Willis & Bro., by whom it was to be sold, on arrival, for account of appellee.

The appellee was a cotton buyer doing business at Kosse, on the line of appellant's railway, and the cotton as purchased was delivered to the appellant, who executed bills of lading therefor, but a large part of the cotton was not transported within a reasonable time after bills of lading were delivered, though ultimately taken to Galveston by the appellant.

The various items of damage are particularly set forth in the petition, and embraced loss in weight and decline in price during the delay, cotton destroyed by cattle, depreciation in the grade and value of the cotton while in the possession of the carrier by exposure to the weather, loss on pickings on arrival at Galveston, cost of picking; and he also claimed by way of damage a named sum paid to his commission merchant in Galveston as interest, which would not have accrued if his cotton had been transported within a reasonable time after bills of lading were executed.

The appellant answered by general demurrer and general denial.

The cause was tried without a jury and the conclusions of fact found by the court are as follows:

“ First. The plaintiff was a merchant in the town of Kosse, in Limestone county, Texas, and the defendant a common carrier, with its line of road running through said town, as alleged in plaintiff's petition, in the years 1880 and 1881.

Second. That the plaintiff purchased during the cotton season, beginning August 16, 1880, and ending March 16, 1881, five hundred and ninety-seven bales of cotton, for which defendant executed bills of lading as it was tendered for shipment at the time stated in plaintiff's exhibit ‘B.'

Third. That on all the cotton received by the defendant for shipment after September 14, 1880, there was a damage of $5 per bale, that is on four hundred and seventy-six bales, making an aggregate damage of $2,380, and that one hundred and twenty-one bales of the five hundred and ninety-seven were shipped by the defendant promptly.

Fourth. That in consequence of the failure of defendant to ship the four hundred and seventy-six bales within a reasonable time after bills of lading were executed therefor, the plaintiff sustained a further loss, by reason of a further decline in the market where the cotton was consigned at Galveston, of $1,483.32, as shown by plaintiff's exhibit ‘B.'

Fifth. That plaintiff suffered a further loss of $63.21 in the way of pickings, and that said loss on said four hundred and seventy-six bales of cotton was due to the failure to ship said cotton after the bills of lading were executed therefor.

Sixth. That two hundred and eighty-seven pounds of plaintiff's cotton, of the value of $28.70, was destroyed by the cattle in the town of Kosse after the defendant executed bills of lading therefor.

Seventh. That plaintiff was indebted to P. J. Willis & Bro., of Galveston, a considerable amount, which indebtedness the said cotton was intended to pay off, and that the plaintiff paid interest on said indebtedness at the rate of one per cent. per month, or in the aggregate $243.50 on said indebtedness from and after September 14, 1880.

Eighth. That plaintiff paid to have about seventy-five bales of his four hundred and seventy-six bales picked, the sum of $56.25; said pickings being rendered necessary by defendant's failure to ship said cotton within a reasonable time after bills of lading were executed therefor.

Ninth. That of the said four hundred and seventy-six bales there was little or none thereof that was shipped in the order in which it was presented for shipment.”

On these conclusions of fact the court below held, as matter of law, “that the several items of damage set forth above (in the conclusions of fact) are proper elements of damage, and under the facts of this case, and under the law regulating common carriers in this state, and I therefore render judgment in favor of plaintiffs against defendant for $4,255.08, the aggregate amount of said items and costs of suit.”

The appellant presents in the brief but two assignments of error.

The first assignment relates to the item of interest paid to P. J. Willis & Bro., as stated in the seventh conclusion of fact, and it is urged that in the case made interest so paid is not a proper element of damage.

The statute of this state provides that, “where common carriers receive goods for transportation into their warehouses or depots they shall forward them in the order in which they are received, the first received to be first forwarded, without giving the preference to one over another, and in case they shall fail to do so, they shall be liable, absolutely, for all losses occurring while the goods remain and for all damages occasioned or in any wise resulting from the delay; provided, that the trip or voyage shall be considered as having commenced from the time of the signing of the bill of lading, and the liability of the common carrier shall attach, as at common law, from and after such signing.” R. S., 283.

It is not denied that there was an unreasonable delay in transporting the cotton, for which damage was given at the rate of $5 per bale, after the same was received by the appellant and bills of lading executed therefor; nor can it be denied that the cotton of other persons received by the railway company after that of the appellee was transported before his.

The terms of the statute are very broad, and evidently give the right to recover damages on account of the common carrier's default, for any injury which in a legal sense can be said to be caused by that default.

The allowance of interest by way of damages has not in this state been confined to those cases in which interest is expressly given by statute.

It has been held that on a contract to deliver chattels, where the purchase money has been paid, the highest price at any time between the day when the delivery should be made and the day of trial, with interest from the time when delivery should have been made, is the measure of damage for the breach of contract. Calvit v. McFadden, 13 Tex., 324. This rule was varied somewhat in Masterson v. Goodlett, 46 Tex., 403; but the right to interest for failure to deliver was recognized. Some qualification of the rule was also made as to the time when the value should be estimated, in Heilbroner v. Douglass, 45 Tex., 406, but the rule as to allowance of interest was adhered to.

Interest has been allowed on the value of personal property converted. Grimes v. Watkins, 59 Tex., 140;Hudson v. Wilkinson, 61 Tex., 610.

Interest is allowed on breach of warranty in sale of land (Turner v. Miller, 42 Tex., 418;Glenn v. Mathews, 44 Tex., 400); and the same rule prevails on breach of warranty in sale of chattels unless varied by special circumstances. Anderson v. Duffield, 8 Tex., 237;Scranton v. Tilley, 16 Tex., 183;Anding v. Perkins, 29 Tex., 348.

For conversion or detention of money, interest has been allowed. Commercial & Agricultural Bank v. Jones, 18 Tex., 811;Close v. Fields, 13 Tex., 623.

In Fowler v. Davenport, 21 Tex., 635, which was an action against a common carrier for failure to deliver articles which the carrier undertook to transport, it was said, “upon contracts in which an agreement to pay interest is expressed, or can be implied, the interest is a legal incident, and it is held to be the duty of the court to instruct the jury to give interest. There it is a matter of law. In other cases it is a matter of fact, as damages in other cases, and may be allowed by the jury by analogy to interest. In such cases it is not an incident to the debt, but may be allowed under circumstances by way of mulct or punishment for some fraud, delinquency or injustice of the debtor, or for some injury done by him to the creditor. Renss. G. F. v. Reid, 5 Cow., 614.” This rule was followed and interest allowed in the case of Wolfe v. Lacy, 30 Tex., 350, which was a suit against a common carrier for injury done to cotton while in course of transportation.

The rule in reference to the non-delivery of goods by a common carrier is thus stated by Mr. Sedgwick: “As a general rule, where goods are intrusted to a carrier and they are not delivered according to the contract, the value of the goods, with interest thereon from the day when they should have been delivered, is the measure of damages.” 2...