Texas & P. Ry. Co. v. Langbehn

• Decision Date: 20 May 1912
• Citation: 150 S.W. 1188
• Parties: TEXAS & P. RY. CO. v. LANGBEHN.
• Court: Texas Court of Appeals

Page 1188

150 S.W. 1188

TEXAS & P. RY. CO. v. LANGBEHN.

Court of Civil Appeals of Texas. Galveston.

May 20, 1912.

On Motion for Rehearing, October 11, 1912.

Appellee's Motion for Rehearing Denied October 31, 1912.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Action by J. H. Langbehn against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed in part, and rendered in part.

Wilson & Dabney, of Houston, for appellant. Stewarts, of Galveston, for appellee.

REESE, J.

This suit is by J. H. Langbehn against the Texas & Pacific Railway Company to recover the value of certain cotton alleged to have been shipped from Merkel, Tex., and from Colorado, Tex., to Galveston, Tex., and never delivered. Upon the trial, without a jury, there was judgment for plaintiff for $411, from which defendant appeals.

It was alleged that on October 11, 1906, J. F. Witherspoon delivered to the defendant at Merkel, Tex., 277 bales of cotton, marked "DONE," to be shipped to Galveston, Tex., to shipper's order, for which defendant executed its bill of lading No. 75; that on October 16, 1906, Campbell & Cleaver delivered to defendant, at Colorado, Tex., 50 bales of cotton, marked "EKT," to be shipped to Galveston, Tex., to shipper's order, for which defendant executed its bill of lading No. 69; that on or about April 24, 1907, Gussoni & Co. delivered to defendant, at Colorado, Tex., three bales of cotton, marked "LKWB," to be shipped to Galveston, Tex., to shipper's order, and defendant executed its bill of lading D898 therefor; that plaintiff made numerous demands from time to time, after lapse of a reasonable time, for delivery of said cotton, but that three bales of the cotton marked "DONE," of the market value of $218.67, were not delivered, and that ten bales of the cotton marked "EKT," of the market value of $1,280, were not delivered, and that the three bales marked "LKWB," of the market value of $147, were not delivered; that by accepting for through transportation said shipments, and issuing bills of lading therefor, defendant promised and became bound to perform said contract in Galveston county, Tex., by delivering said cotton at Galveston; that each of the said shippers, for value, indorsed and delivered the bills of lading to Langbehn Bros., whereby Langbehn Bros. became entitled to receive from defendant, and defendant became obligated to deliver, said cotton within a reasonable time; that from October, 1906, to February, 1907, there existed in the yards and upon the tracks of the various transportation companies at and near Galveston a congestion of cars, to such an extent that it was rendered impossible for the railroads to deliver freight with any degree of promptness, and that reasonable time for the delivery of the 277 bales and the 50 bales shipped in October, 1906, would have been about April 1 or 15, 1907; that defendant could not have been held liable in an action for breach of contract or delay before the said date of April, 1907, and therefore plaintiff's cause of action did not arise prior to April, 1907.

The petition was filed February 11, 1909. Defendant filed its plea of privilege, alleging that its domicile and principal office was in Dallas county, Tex.; that no part of its line extended into Galveston county; and that it had no agency or representative in Galveston county, and negativing the existence of any exception to the general provisions of the statute which would authorize suit against it in Galveston. Defendant also pleaded a general denial, and specially denied, under oath, that the International & Great Northern Railway Company was its agent, or that there was any partnership between them. Defendant further pleaded the two-year statute of limitation in bar of the action, and also that there was a special contract that no action should be brought for breach of the contract after two years from the date of the breach; and also pleaded in bar the failure of plaintiff to give notice in writing of the claim sued on before the expiration of 90 days from the date of the accrual of the claim.

By supplemental petition plaintiff pleaded "that plaintiff and defendant corresponded at great length concerning the claims now sued on from about October 18, 1907, almost continuously to the time of filing suit; that all such correspondence related to and constituted a claim in writing, and which notice was given before the expiration of 90 days from a reasonable time within which defendant could and should have delivered the cotton described in the petition in this cause, and, furthermore, by said correspondence defendant did waive the provisions in the bills of lading requiring notice of suit, in that defendant, its officers, agents, employés, and representatives, agreed to trace for and account to plaintiff for said cotton; that defendant's representatives, from time to time, did verbally promise plaintiff to trace for said cotton, and requested plaintiff to defer filing suit therefor, promising plaintiff that the cotton would be properly traced, and when found would be delivered to plaintiff, and plaintiff relied upon such representations, both verbal and written, and delayed filing suit until February 11, 1909, all of which matters and things so pleaded having been relied upon by plaintiff and induced plaintiff to delay filing suit until February 1, 1909;" and, further, that the 90-day limitation clause in the contract, for giving notice, was unreasonable.

The trial court, at the request of defendant, filed conclusions of fact and law. None of the conclusions of fact are objected to by either of the parties, and they are hereby adopted by us as our conclusions, and, so far as material to the questions presented, are as follows:

"The Texas & Pacific Railway Company, defendant, at the time of the institution of this suit, February 11, 1909, and of the service of citation on said defendant and the filing of the plea to the venue, and at the time of the trial of the cause, the domicile and principal office and principal place of business of said defendant was in the city of Dallas, in Dallas county. Texas, and not in Galveston county, Texas. That neither the said railway, nor any part of same, extends into or is operated through the county of Galveston, Texas. At the time of the institution of the suit, and since said date, said defendant has at no time had an agency or representative or an agent in Galveston county, Texas, appointed by it.

"Said railway runs from Bowie county to El Paso county, Texas; and the defendant had, at the institution of this suit and since, an agent in the various counties through which its lines run, to wit, in Tarrant county, in Dallas county, and in other counties through which said road runs.

"Through bills of lading were made, executed, and delivered by defendant, one numbered D898, at Colorado, Texas, dated April 24, 1907, to Gussoni & Co., for delivery to shipper's order, notify J. H. W. Steele, or their assigns, at Galveston, Texas, for 3 bales of cotton marked `LKWB'; another at Merkel, Texas, dated October 11, 1906, numbered 75, to C. F. Witherspoon, for delivery to shipper's order at Galveston, Texas, for 277 bales of cotton marked `DONE'; and both of said bills of lading were duly indorsed, transferred, and delivered to plaintiff, for value received, and in regular order of business, and he remained the owner and holder of same, and entitled to receive from defendant the cotton specified in said bills of lading.

"Each of said bills of lading contained the following provisions, among others, viz.: `That no suit or action against the Texas & Pacific Railway Company, or any breach for damages arising from any breach of this contract, or injury to or loss or destruction of said cotton shall be sustained in any court unless notice in writing, distinctly setting forth the claim, shall be given to the nearest or any other convenient local agent of said Texas & Pacific Railway Company before the expiration of ninety days from the date of accrual of such claim; and in no event shall any suit or action in any court for damages arising from any breach of this contract, or for damages or injury to, or loss or destruction of, said cotton, or any part thereof, be sustained, unless the same shall be commenced before the expiration of two years from the date when such breach, injury, loss or destruction occurred, and the lapse of such time shall be conclusive evidence against the validity of any such claim and demand.'

"Delivery of the 3 bales of cotton or any of them, called for by the bill of lading numbered D898, was never made under said bill of lading, or otherwise. Only 274 bales under bill of lading numbered 75 was ever delivered, and the remaining 3 bales called for by said bill of lading have never been delivered.

"The shipment of cotton called for by said bills of lading numbered D898, and numbered 75, were for through shipments from points of origin named in said bills to Galveston, Texas, and that such shipments under the said bills of lading, and each of them, were intrastate shipments.

"The cotton called for in said bills of lading was delivered to the defendant at the places and on the dates given in said bills of lading. The three bales of cotton marked `LKWB' were worth and of the value of $147, or an average of $49 per bale, and the three bales of cotton marked `DONE' were worth $218.67, or an average of $72.89 per bale; and that all of said cotton was delivered for immediate shipment.

"No time within which shipment of cotton should be made is mentioned in any of the bills of lading; and the time, therefore, within which delivery should be made was a reasonable time.

"At the time of the respective dates of execution of said bills of lading numbered D898 and numbered 75, the defendant and the International & Great Northern Railroad Company were connecting lines for all through shipments...