Turner v. St. Louis & San Francisco R.R. Co.

• Decision Date: 09 February 1886
• Court: Missouri Court of Appeals
• Parties: W. TURNER ET AL., Respondents, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.

20 Mo.App. 632

W. TURNER ET AL., Respondents,

v.ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 9, 1886.

APPEAL from the Webster County Circuit Court, W. J. WALLACE, Judge.

Reversed and remanded.

JOHN O'DAY and E. D. KENNA, for the appellant: Evidence is not admissible to prove a parol agreement, entered into either before or at the time of the signing and delivery of a written contract, which will contradict the terms thereof. Railroad Co. v. Cleery, 77 Mo. 634; Long v. Railroad Co., 50 N. Y. 76; Belger v. Dinsmore, 51 N. Y. 166; Collender v. Dinsmore, 55 N. Y. 200; Hinckley v. Railroad Co., 56 N. Y. 429. Neither the local station agent at Springfield nor at Strafford had any express or implied authority to make such a contract. No one was authorized to do so but the defendant's general agent. Railroad Co. v. Railroad Co., 70 Mo. 675; Burroughs v. Railroad Co., 100 Mass. 26; Burtis v. Railroad Co., 24 N. Y. 274; Wait v. Railroad Co., 5 Lans. 477.

DICKEY & FYAN, for the respondents.

ROMBAUER, J., delivered the opinion of the court.

At the date of the grievances complained of, the defendant operated a railway running through Springfield and Strafford, in Missouri, and Cherryvale, Kansas. J. W. Hall was its station agent in Springfield, and W. S. Melton at Strafford.

The plaintiffs, being about to ship some live stock, applied to agent Hall for a contract of through freight from Strafford, Missouri, to Harper, Kansas.

Harper lay beyond Cherryvale, and was not on the defendant's railway, but on the Southern Kansas Railway, which intersected the defendant's road at Cherryvale.

The plaintiffs claim that the live stock was shipped, under a contract with the defendant, (partly oral, made with agent Hall, and partly written, made with agent Melton,) whereby, the defendant agreed, in consideration of fifty dollars per car, or three hundred dollars per six cars, to transport six cars loaded with the plaintiffs' live stock, from Strafford to Harper, and also to furnish free transportation for six men in charge of the stock between these two points.

The defendant claims that the stock was shipped under a written contract, made with agent Melton, which contract is filed with the answer, and by which the defendant agreed to transport six car loads of stock, and six men in charge of it, from Strafford to Cherryvale, for a consideration of twenty-five dollars per car, or one hundred and fifty dollars for six cars.

The plaintiffs in their petition charge several breaches of the contract, which seem to have been treated by the trial court as several independent causes of action. They aver that the Southern Kansas Railway Company did not allow free transportation to more than two men in charge of the stock, and exacted $17.84 fare from Cherryvale to Harper, for four of the men. Also, that the same company exacted from the plaintiffs twenty-five dollars a car, or one hundred and fifty dollars altogether, freight money, before it would deliver the stock to the plaintiffs at Harper. Also, that in consequence of the delay caused by this breach at Harper, the plaintiffs incurred extra expense in feeding the stock, and suffered damages by death and deterioration in condition and value of part of the stock, amounting to three hundred dollars additional.

It is conceded by the testimony, that when one of the plaintiffs signed the written contract of transportation from Strafford to Cherryvale, he did pay to agent Melton the sum of three hundred dollars. That one hundred and fifty dollars of this amount was in full payment for freight and transportation of six car loads and six men, from Strafford to Cherryvale, and the residue advance freight paid from Cherryvale to Harper, which advance freight the defendant collected for, and paid over to, the Southern Kansas Railway Company.

The jury, under the instructions of the court, found for the plaintiffs, and assessed their damages at $167.84, being the exact amount paid in cash by the plaintiffs, for freight and for fare for four men, from Cherryvale to Harper, to the Southern Kansas Railway Company. From this judgment the defendant appeals.

A very full a delaborate brief is filed by the appellant, discussing in detail the errors claimed to have been committed in the trial of the cause. We shall notice only such of these as we deem essential for a just disposition of the cause.

The first error complained of is, that the petition states no cause of action.

The defendant interposed a demurrer to the evidence on that...