The Toledo, St. Louis And Kansas City Railroad Co. v. Levy
| Decision Date | 05 February 1891 |
| Docket Number | 14,739 |
| Parties | The Toledo, St. Louis and Kansas City Railroad Company v. Levy et al |
| Court | Indiana Supreme Court |
From the Grant Circuit Court.
Judgment affirmed.
S. O Bayless, for appellant.
G. W Harvey, H. J. Paulus and A. De Wolf, for appellees.
This was an action by the appellees against the appellant to recover damages arising out of an alleged breach of contract to transport cattle from the city of Marion, in this State, to the city of Buffalo, in the State of New York.
It is alleged in the complaint that in the month of July, 1888, the appellees were the owners of thirty-eight head of fat cattle, at Marion, Indiana, which they desired to ship to the city of Buffalo, in the State of New York, to be sold in the market on the 7th day of that month; that the appellant, through its agent, at the city of Marion, in order to induce the appellees to ship said cattle over its road, undertook and contracted with them that it would deliver, without damage or delay, all said cattle in the cattle market of said city of Buffalo, in time for the early morning market on the morning of the -- day of July, 1888, which said early morning market would be not later than 8 o'clock a. m.; that in order to reach said city of Buffalo by rail, appellant was compelled to transfer its freight and cars to the Lake Shore Railroad, which runs through the city of Toledo, in the State of Ohio, over which said line appellant agreed to ship and deliver said cattle; that, pursuant to said contract, appellees did, on the 5th day of July, 1888, ship said stock over appellant's road, and that the appellant violated said contract in this, to wit: that at the said city of Toledo, the cars containing said stock were permitted, by the carelessness of appellant, and the carelessness of the said Lake Shore Railroad Company, to remain on the side-tracks and switches at Toledo for the period of seven hours during the [127 Ind. 170] -- day of July; that the heat of the sun was intense upon the cars containing said cattle, and that by reason of said heat one of said cattle died, and that by reason of said delay the cattle did not arrive in the city of Buffalo in time for the morning market for the -- day of July, 1888; that, in order to sell said cattle, the appellees were compelled to and did accept therefor twenty cents less upon the hundred pounds than they would have received had said cattle been delivered at the time required by said contract; that the steer which died as aforesaid was of the value of ninety dollars.
To this complaint the appellant filed an answer consisting of three paragraphs, the first being a general denial.
The second and third paragraphs of the answer aver that the cattle named in the complaint were shipped under a written contract between the appellant and appellees, setting out the contract under which it is averred the cattle were shipped.
The appellees, among other things, replied that the contract set out in the answer had, by mutual agreement between the parties, been rescinded at a time prior to the shipment of the cattle, and that they were shipped under the verbal agreement set up in the...
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