Southwestern Motor Transport Co., Inc. v. Valley Weathermakers, Inc., 4173

• Citation: 416 S.W.2d 488
• Decision Date: 26 May 1967
• Docket Number: No. 4173,4173
• Parties: SOUTHWESTERN MOTOR TRANSPORT COMPANY, Inc., Appellant, v. VALLEY WEATHERMAKERS, INC., Appellee. . Eastland
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 488

416 S.W.2d 488

SOUTHWESTERN MOTOR TRANSPORT COMPANY, Inc., Appellant, v. VALLEY WEATHERMAKERS, INC., Appellee.

No. 4173.

Court of Civil Appeals of Texas Eastland.

May 26, 1967.

Rehearing Denied June 16, 1967.

Muse, Currie & Kohen, Ralph W. Currie, Dallas, Hardy, Galindo & Sharpe, Thomas G. Sharpe, Jr., Brownsville, for appellant.

Orrin W. Johnson, Harlingen, for appellee.

GRISSOM, Chief Justice.

Valley Weathermakers, Inc., sued Southwestern Motor Transport Company, Inc., for the value of labor and material furnished by the plaintiff in repairing and replacing air conditioning equipment which the plaintiff had shipped in interstate commerce with the defendant as the initial carrier and which equipment was damaged by a connecting carrier. The plaintiff sought recovery under an alleged contract with the defendant. It also sued for reasonable attorney's fees. In a trial to the court, judgment was rendered for the plaintiff for the reasonable value of the labor and material so furnished and for attorney's fees. Southwestern Motor Transport Company, Inc., has appealed.

Appellant presents twenty-one points of error. The first one being that the court erred in trying the case on the theory of an oral contract to repair and replace such equipment because the only contract between the parties was the Bill of Lading for shipment of said equipment in interstate commerce because said Bill of Lading was cumulative of all rights of the parties and said Bill of Lading incorporated all provisions of the Interstate Commerce Act and relevant tariffs. The second point is that the court erred in trying the case on the theory of an oral contract because in so doing it stripped the defendant of all defenses it had under federal law pursuant to the contract for the shipment of said goods in interstate commerce; that this was solely a question of federal law and the defenses would have been:

A. Fault of the shipper.

B. Inherent vice of the commodity.

C. Act of God.

The third point is that the court erred in applying the Texas law applicable to formation of the contract because said cause arose out of an interstate shipment and was controlled by Federal Law. Other points present the contention that there was no evidence or insufficient evidence to support the finding of $9,854.56 as the reasonable value of the work done and material furnished in repairing and replacing said damaged equipment. Appellant also contends that the parties with whom the plaintiff allegedly contracted for the repair and replacement of the damaged equipment had no authority to make such a contract and that the court erred in awarding plaintiff attorney's fees, because attorney's fees were not recoverable under Article 2226, because plaintiff's suit was on a special contract.

It is undisputed that plaintiff shipped in interstate commerce air conditioning equipment manufactured by it; that it was damaged by a connecting carrier and that defendant was the initial carrier who issued the bill of lading. There is no question but that under this record the court had the right to find that under the Interstate Commerce Act the defendant, the initial carrier in interstate commerce, was liable to the plaintiff for damage caused by its connecting carrier. Plaintiff's evidence was to the effect that when the defendant notified it of the damage to its equipment that it was the only concern in that general area capable of replacing and repairing it; that it contracted to repair and replace the damaged equipment and the defendant impliedly agreed to pay plaintiff the reasonable value of the labor and material furnished and that the reasonable value of the labor done and the material furnished was the amount found by the court.

With due deference to the excellent brief and argument of the appellant, we have concluded that the case is not controlled by federal statute; that this is simply a suit upon a contract to recover the reasonable value of the labor done and the material furnished by the plaintiff under a contract and that the evidence is sufficient to support the findings of the trial court and the judgment therefor and that the controlling findings are not contrary to the overwhelming weight and preponderance of the evidence.

There was evidence to the effect that the defendant's agent at the place of shipment and the general claim agent made the contract alleged by the plaintiff; that the damaged equipment was returned by the defendant from the place where it was damaged to the plaintiff's place of business in the town from whence it was shipped to be replaced and repaired by it, because plaintiff was the only concern in the general area that was capable of making such repairs and replacements; that the defendant returned it to the plaintiff for the purpose of having it replaced and repaired; that it had knowledge of the repairs and replacements being made and inspected them while the work was being done. While the contract was somewhat indefinite and consisted of a letter and telephone conversation and contained no agreement as to the amount to be paid plaintiff,...