Texas & N. O. R. Co. v. Weems

• Decision Date: 02 March 1916
• Docket Number: (No. 1566.)
• Citation: 184 S.W. 1103
• Parties: TEXAS & N. O. R. CO. v. WEEMS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 1103

184 S.W. 1103

TEXAS & N. O. R. CO. v. WEEMS et al.^*

(No. 1566.)

Court of Civil Appeals of Texas. Texarkana.

March 2, 1916.

Rehearing Denied March 30, 1916.

Appeal from District Court, Cherokee County; L. D. Guinn, Judge.

Action by J. B. Weems and others against the Texas & New Orleans Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

See, also, 165 S. W. 1194.

John T. Garrison, of Houston, and Guinn, Imboden & Guinn, of Rusk, for appellant. Norman, Shook & Gibson, of Rusk, for appellees.

HODGES, J.

The appellees instituted this suit to recover damages from the appellant for the breach of a contract to furnish them refrigerator cars upon certain dates named in the petition. It is alleged that they were joint owners of a peach orchard situated about three miles from Rusk, Tex., near the line of the appellant's railroad; that on or about the 1st day of June, 1910, the appellant, through its agent Mrs. Clark, contracted with the appellees to furnish them certain refrigerator cars for the purpose of moving their peach crop. The contract provided, it is claimed, that the refrigerator cars should be furnished upon one day's notice, and placed upon a spur near their orchard; that on or about the 14th, 15th, and 16th days of June, 1910, the appellees demanded of the appellant the cars agreed upon and that they be placed on this spur track; that appellant failed and refused to deliver the refrigerator cars in response to the request, and by reason of that failure the appellees sustained damages in losing an opportunity to ship their fruit. The cause of action appears to be based upon the failure of the appellant to deliver refrigerator cars according to the terms of a special contract, and for the failure to deliver cars as required by statute, after notice. The case was submitted to the jury upon special issues, and upon the answers of the jury the appellant moved for judgment in its favor. This motion was overruled and judgment entered in favor of the appellees for the sum of $1,350.

The first assigned error complains of the action of the court in rendering judgment against the defendant, for various reasons stated, among which is the insufficiency of the evidence to establish a binding contract to furnish cars at a particular time and place. The evidence shows that the contract, if any, was made with Mrs. L. E. Clark; and the jury found, in response to the questions submitted, that Mrs. Clark was at the time the agent of the Texas State Railroad and also the agent of the appellant for the purpose of securing shipments of peaches. The jury further found that the appellant, through its agent Mrs. L. E. Clark, agreed with the appellees that if they (appellees) would use Pacific Fruit Express cars and route their shipments in part over the appellant's line of railroad the appellant would furnish Pacific Fruit Express cars and have them put on the "ore bed" road in their orchard, and would prepare to handle their shipments of peaches for the season of 1910. There was no complaint of this finding of the jury. This, we think, is tantamount to a finding that there was an agreement between the appellant's agent and the appellees to furnish the cars referred to above. That these cars were not furnished after notice and demand is undisputed. It is also undisputed that by reason of the failure to furnish the cars the appellees sustained damages in the loss of a considerable portion of their peach crop. This amount the jury fixed at $1,350. The appellant is in no attitude to insist upon this assignment in the present condition of the record. There was no motion to set aside the findings of the jury upon these issues, and, in the absence of such a motion, an objection based upon the...