"The appellee filed three separate suits in the justice court of Dallas county to recover alleged overcharges in freight on three several carloads of building material shipped by appellee over the railway lines of appellant. Two of the three suits were filed on November 21, 1914, and one on December 16, 1914. The statement of the nature of plaintiff's demand in the citation issued by the justice of the peace in one of the suits filed November 21, 1914, is as follows: `Suit for the sum of $43.96 overcharge on bill of lading dated November 24, 1910, issued by defendant company over its line on shipment of carload of artificial molded stone to Geo. W. Sonnefield at Calvert, Tex., and delivered on H. & T. C. freight bills Nos. 8167 and 8724 as shown by claim No. 398954 and S. W. Traffic Bureau claim No. 2842. Plaintiff alleges that said claim is a bona fide one, and that more than 30 days before the filing of this suit said claim was presented to defendant for payment, and defendant refused and still refuses to pay same, that plaintiff was compelled to employ an attorney to bring this suit, and that $20 is a reasonable fee for such services. Plaintiff sues for its debt, legal interest, attorney's fees, costs of suit.' The statement of the nature of plaintiff's demand in the citation issued by the justice of the peace in the other suit filed on November 21st, 1914, is the same as that just quoted, except as to the amount sued for. The statement of the nature of plaintiff's demand in the citation issued by the justice of the peace in the suit filed on December 16, 1914, is as follows: `Suit on overcharge on freight on Houston & Texas Central Railroad Company on carload of artificial molded stone to Geo. W. Sonnefield at Calvert, Tex., and delivered to Houston & Texas Central Railway Company on December 19, 1910, in the sum of $41.36. Plaintiff alleges that said claim is a bona fide one, and that 30 days before filing this suit plaintiff, its agent, presented said claim to the defendant, and that defendant refused to pay the same, and plaintiff has been compelled to place said claim in the hands of an attorney for collection, wherefore plaintiff prays judgment of the court for the sum of $41.36 with legal interest and for $20 attorney's fees, for all costs of suit.' These suits were consolidated in the justice court. Upon trial in that court appellee recovered judgment for the sum of $141.52. From this judgment appellant appealed to the county court of Dallas county, at law. In the latter court appellee filed its first amended original petition, which, omitting formal parts, is as follows:
"`Comes the plaintiff, Southern Architectural Cement Stone Company, and, leave of the court had and obtained, files this, its first amended original petition, and shows the following:
"`(1) That on, to wit, November 19, 1910, plaintiff made shipment from Dallas, Tex., of a carload of artificial molded stone, plain, not lettered or figured, to George W. Sonnefield at Calvert, Tex., delivering same to Houston & Texas Central Railroad Company at Dallas, Tex., for transportation, for which said Houston & Texas Central Railroad Company issued its bill of lading, dated at Dallas, Tex., November 19, 1910, same being delivered at Calvert, Tex., on Houston & Texas Central Railroad Company's freight bills Nos. 8167 and 8724, dated December 2d and December 20th, respectively; that on said shipment the said Houston & Texas Central Railroad Company made an overcharge in freight in the sum of $43.96.
"`(2) That on, to wit, November 14, 1910, plaintiff made shipment from Dallas, Tex., of a carload of artificial molded stone, plain, not lettered or figured, to James Stewart Company at Houston, Tex., delivering same to Houston & Texas Central Railroad Company at Dallas, Tex., for transportation, for which said Houston & Texas Central Railroad Company issued its bill of lading dated at Dallas, Tex., November 14, 1910, same being delivered at Houston, Tex., on Houston & Texas Central Railroad Company's freight bill No. 24561, dated Houston, Tex., November 29, 1910; that on said shipment the said Houston & Texas Central Railroad Company made an overcharge in freight in the sum of $46.20.
"`(3) That on, to wit, December 10, 1910, plaintiff made shipment from Dallas, Tex., of a carload of artificial molded stone, plain, not lettered or figured, and 1,100 pounds of figured stone, to Geo. W. Sonnefield, at Calvert, Tex., delivering same to the Houston & Texas Central Railroad Company at Dallas, Tex., for transportation, for which said Houston & Texas Central Railroad Company issued its bill of lading dated at Dallas, Tex., December 10, 1910, same being delivered at Calvert, Tex., December 19, 1910; that on said shipment the said Houston & Texas Central Railroad Company made an overcharge in freight in the sum of $41.36.
"`(4) That heretofore plaintiff filed in the justice court of precinct No. 1, Dallas county, Tex., three separate suits to recover the several items of damage set out in paragraphs 1, 2, and 3 hereof, having given, more than 30 days before the filing of each of said suits, notice to defendant of its claim for the several items of damage hereinbefore set out, and praying for a reasonable attorney's fee in each of said suits; that heretofore said several suits instituted by plaintiff were in justice's court consolidated into one suit, being the suit herein maintained by plaintiff, plaintiff at said time waving its demand for the attorney's fees theretofore demanded, except for an attorney's fee in the sum of $20; that plaintiff, having given notice to defendant of its claims, and defendant having refused to pay same or any part of same, has employed an attorney to bring and prosecute this suit, and that $20 is a reasonable fee for such services.
"`Wherefore plaintiff prays that it have judgment for its damages in the aggregate sum of $131.52 interest on same from January 1, 1911, until January 1, 1917, at the rate of 6 per cent. per annum, $20 as its reasonable attorney's fees, all costs of suit, and such other relief to which it may show itself entitled.'
"The appellant issued and delivered to appellee on the respective dates of the alleged shipments bills of lading, in which it agreed to transport the property received for shipment and deliver the same to the consignee. Each
bill of lading recites that the property received for shipment is accepted for transportation upon the following terms and conditions, which are agreed to by the shipper, namely: `The rate of freight for transportation of the articles named herein from place of shipment to destination is guaranteed not to exceed the rate specified herein and charges added or incurred, provided that the contents and weight of packages as noted herein are correct. It is, however, further understood and agreed that only approximate weights are signed for, and correct weights and classification are to be ascertained and collected at destination, provided, however, it is expressly stipulated and understood that this bill of lading is given subject to correction as to rate, weight, and classification so as to conform to the rate, rules, and regulations prescribed by the Railroad Commission of Texas; and, if destination is beyond the limits of the state of Texas, then subject to correction so as to conform to the rates, rules, and regulations established by the laws regulating interstate commerce.' Neither of the bills of lading was attached to or made a part of plaintiff's petition, but were introduced in evidence. The amount of freight paid or due to be paid for the transportation of the several shipments was not mentioned in the bills of lading.
"Appellant pleaded a general demurrer, the general issue, and by special exception and answer pleaded the statutes of limitation of two years. These demurrers were overruled, and defendant excepted. Upon the conclusion of the evidence appellant requested the following instruction: `You are instructed that plaintiff's suit is barred by the statute of limitations of two years, and you will therefore return a verdict for the defendant.' This instruction was refused.
"The case was submitted to a jury on special issues, and upon the verdict found by the jury the court rendered judgment for appellee for the sum of $198.86. Appellant's motion for a new trial was overruled, and the case is now before this court on appeal.
"The record conclusively shows that more than two years...
