McAbsher v. Richmond & D.R. Co.

• Decision Date: 16 February 1891
• Parties: MCABSHER et al. v. RICHMOND & D. R. CO.
• Court: North Carolina Supreme Court

12 S.E. 892

108 N.C. 344

MCABSHER et al. v. RICHMOND & D. R. CO.

Supreme Court of North Carolina

February 16, 1891

Appeal from superior court, Ashe county; BYNUM, Judge.

Plaintiffs in an action against a railroad company for damages, alleged that defendant agreed to furnish them with two cars, for the shipment of cattle, at a certain place, on a certain Thursday; that their object in contracting for the cars at such time was to reach the city of Norfolk in time for the following Sunday market, which was the best market day in said city; and that their purpose was well known to defendant. Held, that an issue as to whether defendant agreed to carry the cattle to Norfolk in time for such Sunday market was not within the pleadings.

D Schenck, G. F. Bason, and F. H. Busbee, for appellant.

G. N Folk and G. W. Bower, for appellees.

SHEPHERD J.

1. The plaintiffs allege that the defendant contracted to furnish them two cattle-cars at Taylorsville on a certain Thursday, in order that they might ship their cattle on the east-bound train of that day. They also allege, for the purpose of showing special damages, that their object in contracting for the cars at the time stated was to reach the city of Norfolk, Va., with their cattle on the following Saturday morning, so as to avail themselves of the Sunday market, that being "the best market day" in the said city. They further allege that their said purpose was known to the defendant, and they seek to recover damages for the breach of the said contract. The defendant, among other defenses, denied these allegations, and issues 1 and 2, involving their truthfulness, were properly framed and submitted to the jury. The court also submitted the third issue, which was as follows: "Did it [the defendant] agree to carry the cattle there in time for said market?" To this issue the defendant excepted, and we think that the exception should be sustained. There is no allegation that the defendant contracted to transport the cattle to Norfolk at any particular time, and the mere knowledge on its part of the plaintiffs' object and purpose to reach that place on Saturday does not dispense with the necessity of alleging that there was an agreement to that effect. There must be allegata as well as probata. The defendant may well have been prejudiced by the said issue, as it does not appear that his honor, in his charge, distinguished the damages to be recovered for a violation of this interpolated contract from those which might be recovered upon the contract upon which the first issue was founded.

2. The defendant further contends that the plaintiffs cannot recover, because their purpose was illegal, in that the sale of cattle in public market on Sunday was prohibited by the law of Virginia. As the court could not take judicial notice of such a law, and as its proof was accompanied by evidence tending to show that the alleged transactions on Sunday were not, according to the custom of the place, completed sales,--the payment and delivery being made on Monday, and therefore not a violation of the Sunday law of the said state, (1 Whart. Cont. 383; 2 Pars. Cont. 763; Benj. Sales, § 732,)--we do not feel warranted in passing upon the vitiating effect of the said law upon the contract of carriage, had it been clearly shown that the purpose of the plaintiffs was to effect a completed sale on the Lord's day. Granting however, that there was a legal contract, that is, one free from any illegal purpose in its inception, to transport to Norfolk, as alleged, we are entirely satisfied that the defendant's third prayer of instruction should have been given. The prayer was as follows: "That the plaintiff cannot show any sale day or any market price in Norfolk, on Sunday, because all work and labor is forbidden by the laws of Virginia; nor can he recover any damages, by reason of the difference between such Sunday market price and the market price of another day." The Code of Virginia (chapter 185, § 17) prohibits such sales on Sunday, and, this being so, it plainly follows that there can be no "market price" on that day which can be recognized in a court of justice. It is true that the plaintiffs explained the nature of the agreements that were made on Sunday, but it was for the jury to...