St. Louis & S. F. R. Co. v. Bryce
| Decision Date | 21 March 1908 |
| Citation | 110 S.W. 529 |
| Parties | ST. LOUIS & S. F. R. CO. v. BRYCE. |
| Court | Texas Court of Appeals |
Appeal from Hardeman County Court; J. C. Marshall, Judge.
Action by C. F. Bryce against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
W. T. McConnell and M. M. Hankins, for appellant. C. H. Yoakum and Fires, Decker, Diggs & Clarke, for appellee.
Statement.
On account of injuries to a car of horses carried by appellant from Altus, Okl., to Birmingham, Ala., appellee recovered a verdict and judgment, from which this appeal is prosecuted.
The horses were carried under a written contract containing the following clause, which was pleaded in bar of the action: "That as a condition precedent to a recovery for any damages for delay, loss, or injury to live stock covered by this contract the second party will give notice in writing of the claim therefor to some general officer or the nearest station agent of the first party, or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of such stock at destination, to the end that such claim shall be fully and fairly investigated, and that a failure to fully comply with the provisions of this clause shall be a bar to the recovery of any and all such claims." The replication to this defense was failure of consideration and duress. The proof failed to show that appellee had, or that he had not, complied or attempted to comply with the provision of the contract above quoted, and it also failed to show any want of consideration or duress, as alleged by the appellee.
The court submitted the validity of the contract to the jury in a charge given at the request of appellee, which was clearly erroneous, but no complaint is made of this charge, three assignments only being presented for our consideration; the first complaining of the admission of testimony, which was of little or no consequence, and did not affect the result; the second complaining of the court's refusal to instruct a verdict for appellant; and the third complaining of the verdict on the ground that the evidence showed a failure on the part of appellee to comply with the contract above quoted requiring him to give notice of his claim for damages.
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