St. Louis, I. M. & S. Ry. Co. v. Landa & Storey

• Decision Date: 14 June 1916
• Docket Number: (No. 5684.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: St. Louis, I. M. & S. Ry. Co. v. Landa & Storey, 187 S.W. 358 (Tex. App. 1916)
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. LANDA & STOREY et al.
• Court: Texas Court of Appeals

187 S.W. 358

ST. LOUIS, I. M. & S. RY. CO. v. LANDA & STOREY et al.

(No. 5684.)^*

Court of Civil Appeals of Texas. San Antonio.

June 14, 1916.

Rehearing Denied June 30, 1916.

Error from District Court, Hays County; Frank S. Roberts, Judge.

Action by Landa & Storey against the St. Louis, Iron Mountain & Southern Railway Company and others. There was judgment against the named defendant, and it brings error. Reversed and dismissed.

See, also, 149 S. W. 292.

Guinn & McNeill, of San Antonio, for plaintiff in error. O. T. Brown and E. M. Cape, both of San Marcos, for defendants in error.

MOURSUND, J.

Landa & Storey sued the St. Louis, Iron Mountain & Southern Railway Company, a foreign corporation, the Texas & Pacific Railway Company, the International & Great Northern Railway Company, and James A. Baker and Cecil A. Lyons, receivers of said last-named company, alleging that on or about August 14, 1909, plaintiffs instituted a suit in the district court of Hays county against the said St. Louis, Iron Mountain & Southern Railway Company, the Texas & Pacific Railway Company, the International & Great Northern Railroad Company, and T. J. Freeman, receiver of said last-named company, wherein plaintiffs sought to recover a sum as damages alleged to have been occasioned by the negligence of the defendants therein "in the course of the shipment of a lot of beef cattle shipped by the plaintiffs from New Braunfels Tex., to the National Stockyards at East St. Louis, Ill.," said cause being numbered No. 2147 on the docket of said court; that plaintiffs were exclusively engaged in shipping beef cattle from points in Western Texas to the National Stockyards at East St. Louis, Ill., and at the time had the privilege of shipping the same over various routes to the entire exclusion of the route afforded by the defendants in said suit, which route is for convenience styled the Iron Mountain route, and plaintiffs were shipping the same over such other routes, all of which was well known to said defendants, and said defendants, desiring to share in the traffic thus promoted by plaintiffs, were willing to come to a "settlement of said suit by a compromise agreement to that end, and with a view to that purpose" said Receiver Freeman, said Texas & Pacific Railway Company, and said St. Louis, Iron Mountain & Southern Railway Company on the one hand, acting through their authorized agents, and plaintiffs, on the other hand, on or about May 7, 1911, for a valuable consideration, agreed upon a compromise of said suit; that said agreement, in substance, was (1) that the defendants should and would pay plaintiffs in cash $700 of the $720 damages claimed in that suit and the accrued costs of suit; (2) that plaintiffs should and would accept the payment of same as full settlement and discharge of the damages claimed in said suit; and (3) that from said date forward plaintiffs should and would route all the cattle shipped by them during the remainder of the cattle shipping season of that year so that the same would be carried over said Iron Mountain route; that said agreement was directly afterwards made known to said defendants in that suit and ratified by them before plaintiffs routed their subsequent shipments in conformity with that agreement; that the time within which plaintiffs were to be paid was not specified, but it was understood and agreed that payment was to be made within a reasonable time, and that 60 days was a reasonable time; that plaintiffs relied upon said agreement and complied therewith by routing all of their shipments of cattle during said shipping season so that they were received and carried by defendants from various points in West Texas to the National Stockyards at East St. Louis, Ill., there being about 60 cars, on all of which plaintiffs paid the entire freight, amounting in the aggregate to about $7,000 or $8,000, which was received by said defendants; that said defendants received said freight, although they intended all the while to refuse payment of the sums agreed to be paid by them to plaintiffs according to the terms of said agreement, which sums were alleged to be $700 and $42; that defendants have failed and refused to pay the sums due plaintiffs under said agreement, and are justly indebted to plaintiffs in said sums, with interest from July 7, 1911.

Plaintiffs alleged that the International & Great Northern Railway Company purchased the assets of and became liable for the debts of the International & Great Northern Railroad Company.

The St. Louis, Iron Mountain & Southern Railway Company filed a plea in abatement; a general demurrer; special exceptions; denials of the material allegations of the petition; a plea to the effect that, if any compromise agreement was made, it was abrogated by plaintiffs by their election to proceed with said cause No. 2147 and the prosecution thereof to final judgment; a plea to the effect that, if such a compromise agreement was made, and the consideration was as alleged by plaintiffs, then that such agreement was illegal and void, in that it is contrary to and forbidden by the laws of Texas, and of the United States, in that it granted a privilege and advantage to plaintiffs not open to other shippers of the same character of freight transported in the same manner and over the same lines, and was equivalent to a reduction in plaintiffs' favor of the freight rates authorized and published by the Interstate Commerce Commission for that kind and character of freight over the lines of defendants, and was an undue and unlawful discrimination in plaintiffs' favor. Said defendant also denied that it was indebted to plaintiffs as alleged in said cause No. 2147, and denied that it was negligent with reference to the shipment described in said suit.

Plaintiffs, by supplemental petition, denied the allegations above stated. Plaintiffs dismissed as to all defendants except the St. Louis, Iron Mountain & Southern Railway Company, and upon a trial before the court judgment was rendered against said company for $720, with interest thereon from July 7, 1911. Said railway company, by writ of error, seeks revision of the judgment against it.

The evidence shows that an agreement was made by D. C. Smith, live stock agent of plaintiff in error, with defendants in error, substantially as alleged in the petition. The amount to be paid was $720.70, the full amount claimed in cause No. 2147, exclusive of interest. The evidence was conflicting as to whether the agreement provided for the payment of costs incurred in cause No. 2147 and the payment of interest on the sum of $720.70 from May 15, 1908. The court found against plaintiffs on these items, and allowed $720, with interest thereon beginning 60 days after May 7, 1911, the date of the compromise agreement.

Landa & Storey had ceased shipping over the Iron Mountain route during the pendency of cause No. 2147, and the compromise agreement was made for the purpose of getting them to ship all of their cattle over said route during the remainder of the cattle shipping season of 1911 at the usual and regular freight rates, and it was contemplated by both parties that the regular freight would be collected on each shipment when it should be made. Plaintiffs complied with the agreement to ship exclusively over the Iron Mountain route, shipping 74 cars in all during the remainder of the year 1911, on which they paid the usual freight, amounting in the aggregate to $7,978.71. Defendants failed to pay the sums agreed to be paid by them, whereupon plaintiffs proceeded with the trial of cause No. 2147, obtained a judgment against the St. Louis, Iron Mountain & Southern Railway Company for the full amount of the claim, with interest thereon, but not against the other defendants, and said judgment, in so far as it affected said St. Louis, Iron...