Island City Boating & Athletic Ass'n v. New York & T. S. S. Co.

• Decision Date: 24 March 1891
• Court: Texas Supreme Court
• Parties: ISLAND CITY BOATING & ATHLETIC ASS'N v. NEW YORK & T. S. S. CO.

16 S.W. 112

ISLAND CITY BOATING & ATHLETIC ASS'N v. NEW YORK & T. S. S. CO.

Supreme Court of Texas.

March 24, 1891.

Appeal from district court, Galveston county.

S. S. Hanscom, for appellant. Willie, Mott & Ballinger, for appellee.

HENRY, J.

The appellant, a corporation, sued appellee, also a corporation, stating its cause of action substantially as follows in its petition: That the defendant is a common carrier, and as such received from the manufacturers thereof in New York a six-oared boat consigned by them and to be delivered to plaintiff at Galveston in good order, for which service plaintiff promised to pay to the defendant the sum of $14. That during its transportation by the defendant the boat was damaged, and was offered to plaintiff in that condition. That defendant acknowledged to plaintiff that the boat had been damaged while it was in its custody, and admitted its responsibility and liability for such damage, and thereupon contracted and agreed with plaintiff that it would replace said boat with a similar and perfect boat of the same character, size, make, and structure; and further promised, agreed, and contracted that if it did not so replace said boat with a new and perfect one within a reasonable time thereafter it would pay to plaintiff the value of said damaged boat, which promise plaintiff accepted. That by reason of the premises defendant became liable to pay to plaintiff the value of said boat, or to replace the same by another boat as aforesaid, and to deliver to plaintiff a boat in as perfect condition as the one received by it as aforesaid. That the boat so damaged was worth $700. That defendant, being liable as aforesaid, afterwards promised to furnish said new and undamaged boat, or to pay for the boat so received by it; yet to deliver to plaintiff said boat in perfect condition or in good order, or to pay the value of said boat so damaged, defendant has failed and refused, etc. The petition charges that plaintiff was the owner of the boat so damaged, and of the bill of lading given therefor by the defendant. The defendant answered by exceptions and general and special denials. Upon the verdict of a jury judgment was rendered for the plaintiff for $175. Plaintiff introduced evidence sustaining its allegations as to its ownership of the boat, and as to its being damaged by the defendant, and of the defendant's contract to furnish it another boat, or to pay the value of the damaged one as it was before the damage...