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and was made, as shown upon its face, by trict in Atchison, Topeka & Santa Fé Railsaid railway company for itself alone, and way Co. v. Forbis, 79 S. W. 1047, we are of in no way bound or affected appellant. This the opinion that, upon the undisputed evicontract only bound the Texas & Pacific Rail- dence, appellant's plea of privilege should way Company to transport the cattle from have been sustained by the trial court, and Odessa to Ft. Worth, Tex., and there deliver the cause as to it dismissed. We will say, them to its connecting carriers, and limited however, that we do not clearly perceive the its liability for such damages as might oc- distinction sought to be drawn by the Court cur on its own line of railway. No damages of Civil Appeals of the Second District bewere shown, nor was there any evidence tween the cases cited and the case of Atchitending to show any, to have occurred on son, Topeka & Santa Fé Railway Co. v. Wilthe line of the Texas & Pacific Railway Com- liams, 86 S. W. 38. It certainly was never pany. The cattle were safely transported by contemplated that a defendant could be deit to Ft. Worth without delay, and there de- prived of the privilege, vouchsafed him by livered to the Gulf, Colorado & Santa Fó the law, of being sued in the county of his Railway Company. There was, however, ev- domicile, by reason of allegations by the idence of a few hours' delay at Ft. Worth plaintiff, known by him to have no foundain transferring the shipment from the Texas tion in fact, and fraudulently made for the & Pacific Railway Company to the Gulf, sole purpose of conferring jurisdiction where Colorado & Santa Fé, but there is no evi- none exists, and of depriving the defendant dence tending to show that any damages of a privilege guarantied him by the law. were occasioned by it. The cattle were then Appellant's plea to the jurisdiction of the transported, without delay, or any injury or subject-matter, also, should have been sus. damage, by the Gulf, Colorado & Santa Fé tained. For appellees were only entitled to Railway Company, to Purcell, its terminus,

such compensation, as damages, as would in the Indian Territory, and there delivered make them whole. This could not exceed to appellant railway company. From Pur- the $100, and interest thereon, which they cell they were transported with reasonable

lost on the contract of sale. St. Louis & S. dispatch, and without damage or injury, to F. R. R. Co. v. McDurmitt Grain Co., 87 S. Kansas City, Mo. But instead of delivering W. 355, 13 Tex. Ct. Rep. 125. them there, as it should have done, to the

Because, upon the undisputed evidence, the Missouri Pacific Railway Company to be trial court should, under the law, have sustransported to Lexington, Mo., they were car- tained appellant's pleas of privilege and to the ried by appellant from Kansas City to Lex jurisdiction of the subject-matter, its judgington Junction, which is on the opposite ment against appellant is reversed, and the side of a large river from Lexington, where

case as to it dismissed. The judgments in they were held for about two days, and favor of the Texas & Pacific Railway Comthen carried back by appellant to Kansas pany and the Gulf, Colorado & Santa Fé City, and afterwards delivered to the Mis

Railway Company are affirmed. souri Pacific Railway Company, as should have been done at first, for transportation to Lexington. They were transported by the

PECOS RIVER R. CO. et al. v. LATHAM. last-named company to Lexington, and there delivered to Walter B. Waddell, to whom (Court of Civil Appeals of Texas. June 10, plaintiffs bad sold the cattle prior to the

1905.) date of their shipment from Odessa at $20

1. CARRIERS-CATTLE SUIPMENT CONTRACT

BREACH-EVIDENCE. per head, and who paid plaintiffs the full

Where, in an action for breach of a carpurchase price, less $100. The $100 deducted

rier's contract to furnish cars for shipment of from the purchase price was on account of stock to P., all the witnesses who testified to the damages occasioned by the negligence of ap

market at P. stated that such was a country

market, and had not changed much during the pellant in failing to deliver them to the

entire spring, covering the time when the plainMissouri Pacific Railway Company when tiff's cattle should have reached P., the admis. they arrived at Kansas City for transporta- sion of evidence of an experienced cattle shiption to Lexington. There was no testimony

per, who had never actually transported cattle

over the route in question, as to the length of reasonably tending to show that the cattle

time required to transport cattle to P. from the were damaged while in possession of defend- point of shipment, was harmless. ants in a greater sum, and this damage is 2. SAME-DAMAGES-Extra FREIGIIT. shown by the undisputed testimony to have

Where a carrier failed to perform a con

tract to furnish cars to transport certain catresulted from appellant's negligence in the

tle as agreed, the shipper was not bound to arstate of Missouri, and that neither of its range with another railroad company to transcodefendants were in any way responsible

port the cattle over defendant's route for a part or liable for it.

of the distance in order to reduce the shipper's

damages. Conclusions of Law.

3. SAJE-VARIANCE.

Where, in an action for breach of a carIn view of the decision of the Supreme rier's contract to furnish cars in which to ship Court in Texas & Pacific Railway Co. v.

certain cattle, plaintiff alleged that defendants'

agents who acted for them in negotiating the Lynch, 75 S. W. 486, and of the opinion of the Court of Civil Appeals of the Second Dis- *Rehearing denied July 1, 1905, and writ of error

denied by Supreme Court.

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contract, to wit, W. and S., were duly authoriz- sequent to the time when, under bis estied to make such contract, proof that plaintiff mate, the cattle should have reached their negotiated the contract with S. through letters and telegrams, and consummated a verbal con

destination, it is immaterial whether his estitract with M., did not constitute a fatal va

mate be right or wrong. riance.

Appellants complain that they have been 4. SAME-AUTHORITY OF AGENT-EVIDENCE. held liable for the additional freights paid In an action for breach of a carrier's con

by appellee in transporting his cattle to Pan. tract to furnish certain cars for the shipment of cattle, evidence of a witness as to contracts

handle over other railroads after their failmade by him with C., the agent of the Texas & ure to furnish the cars agreed to be supplied. Pacific Railway Company, by which cars had They invoke the principle that after their been furnished at I., a station on the line of

breach of contract, it was the appellee's duty such company, was admissible to show that such agent's contract with plaintiff to furnish

to exercise reasonable diligence to avoid or cars at I., instead of the place originally con- lessen his damages. No one doubts the cortemplated, was within the scope of the agent's rectness of this principle, but its application authority.

cannot relieve appellants in this case. The J. SAME-INSTRUCTIONS. Where defendants' negligence concurred in

evidence shows that after appellants' failure causing injuries to plaintiff's cattle with that of to furnish cars, and while appellee's cattle other railroads over which the cattle were ac- were being held and suffering injuries, he tnally transported, and the amount of damages

arranged with the Texas & Pacific and other occasioned by each could not be definitely ascertained, defendants were liable for the damages

railroad companies to transport his cattle by proximately resulting from the combined negli- way of Ft. Worth, rather than by way of gence.

Pecos, over the appellants' lines; that while 6. SAME.

appellee did not, at the time he actually billA requested instruction that if plaintiff's cattle were damaged and were poor and weak,

ed his cattle out, request them to be routed and their poor and weak condition, independent over appellants' lines, yet he had previously of any other causes, "aided, assisted, or con- made such request, and the Texas & Patributed to the damage," then defendants were

cific Railway Company refused to furnish the not liable for any damage that might have been occasioned by the condition of the cattle, was

cars for that route. Appellee pleaded that properly refused as misleading.

by reason of appellants' breach of their con.

tract, and total failure to furnish him cars, Appeal from District Court, Reeves Coun

he was compelled to pay this extra freight; ty; James R. Harper, Judge.

and we think the evidence sustains his plea, Action by T. M. Latham against the Pecos

and the law authorizes his recovery. MoreRiver Railroad Company and others. From

over, we think this principle cannot be ina judgment for plaintiff, defendants appeal. Afirmed.

voked by appellants, for the reason that in

the exercise of ordinary care a shipper would J. W. Terry and Ed. J. Hamner, for appel- not be required to make a new contract with lants. T. J. Hefner and Pruit & Smith, for a railroad company which had just broken appellee.

an identical one, and again agree to pay it

for services which it was already under legal SPEER, J. This suit was instituted by obligation to perform. This is analogous to appellee against appellants to recover dam

the question decided by us in Sun Manufacages for breach of a contract to furnish him turing Co. v. Egbert & Guthrie (Tex. Civ. 35 stock cars for the shipment of cattle from App.) 84 S. W. 667. Big Springs to Panhandle. He recovered a From what we have already said to the judgment for $4,000, from which this appeal effect that the market at Panhandle was bas been perfected.

about the same during the entire spring in Our conclusions of fact, where necessary,

which the shipment in controversy took will appear in the discussion of the various place, it follows that there was no error in assignments of error.

permitting the various witnesses to testify Under the facts of this case there was no as to what that market was on or about the reversible error in permitting the witness 5th day of May, 1902—the time when the Tillar to testify as to the length of time re- cattle should have reached their destination. quired to transport cattle from Big Springs, We do not think there was any fatal variby way of Pecos, to Panhandle City. It ance between appellee's allegation “that the seems to be true that the witness, although agents of defendants who acted for them in an experienced cattle shipper, had never ac

negotiating and making said contract, to wit, tually transported cattle over this route. E. W. Martindell and Don A. Sweet, were But since the testimony of all those witness- duly authorized by them to make said cones who testified to the market at Panbandle tract," etc., and his proof that he negotiated indicated that such market was a country

with Sweet through letters and telegrams, market, and not subject to much, if any, and consummated a verbal contract with change during the entire spring, covering the Martindell. time when, under the terms of the alleged The testimony of the witness Tillar as to contract, appellee's cattle should have reach- contracts made by him with W. A. Crowder, ed Panhandle, the testimony, if erroneous, the agent of the Texas & Pacific Railway at cannot be harmful. The market being the Colorado City, by which cars had been fursame for weeks prior as well as weeks sub- nished to the witness at Iatan, another station on the line of the Texas & Pacific, was ta Fé Railway Company (decided by this admissible for the purpose of showing that court June 3, 1905), 88 S. W. 299. While this agent's contract with appellee to furnish appellant would not be liable for damages the cars at Iatan, rather than at Big Springs, resulting alone from the negligence of the the place originally contemplated, was with- Texas & Pacific Railway Company or Ft. in the actual scope of Crowder's authority Worth & Denver City Railway Company, it as agent of the Texas & Pacific Railway Com- nevertheless would be liable for damages repany. Appellee testified that Crowder had sulting proximately from their combined neg. made such a contract, and the latter not only ligence. The rule goes even further, and, in denied that he had made the contract but also personal injury cases, authorizes a recovery denied his authority to do so. Nor was there even though the negligence of the defendant error in admitting the testimony of the wit- concurs with the negligence of a fellow serynesses Latham and Kendall as to the general ant of the injured plaintiff (Ray v. Pecos & custom among railroad live stock agents in Northern Texas Railway Company [Tex. Civ. regard to the subject of making contracts for App.) 80 S. W. 112), or with an act of God shipping cattle. Such testimony certainly (Chicago, Rock Island & Texas Railway Comtended to show that the contract alleged to pany v. Bessie Cain [Tex. Civ. App.) 84 S. have been made with the live stock agent W. 682). It is only where the concurrent Martindell was at least within the apparent cause is contributory negligence of the plainscope of that agent's authority, and the tiff that recovery is denied. pleadings were amply broad to authorize the We think appellants' special charge No. 19 introduction of proof upon such issue.

was properly refused, for two reasons: (1) We overrule that group of assignments em- The matter was sufficiently covered in the bracing the thirteenth, fourteenth, fifteenth court's general charge; and (2) the requested and sixteenth, because we think the evidence charge itself was so worded as to be missufficient to justify a finding that appellee leading. The charge reads: "If you find used all reasonable diligence to prevent dam- from the evidence that plaintiff's cattle were age to his cattle after appellants breached damaged and they were poor and weak, and their contract.

that their poor and weak condition, indeThe eighteenth assignment of error is pred- pendent of any other causes, aided, assisted, icated upon the court's refusal to give the or contributed to the damage, then you are following special instruction: “If you be- instructed that the defendants were not lilieve from the evidence that the plaintiff and able for any damage that might have been or defendants entered into a contract as alleged were occasioned by reason of the condition by plaintiff, and that defendants failed to of the cattle.” It is difficult to understand comply with said contract, and in conse- how a condition independent of any other quence thereof, and as the direct and proxi- causes could aid, assist, or contribute to the mate result of said breach of the contract, the damage, as this charge asserts. This is conplaintiff's cattle were damaged, and that aft- fusing, and for that reason alone could have erward, after receiving said damage, if any, been refused. they were transported over the Texas & Pa. cific Railroad and the Ft. Worth & Denver material allegations of appellee's petition, City Railroad, and while in transit were fur- and the finding of the jury that appellants, ther damaged by the negligence and improp- by reason of the breach of their contract, er handling and transportation, and the evi- damaged appeilee in the amount of the verdence fails to disclose to you the amount of dict. such damages, and you are unable to deter- All assignments of error have been conmine the exact amount of damages caused sidered, and none is thought to present rebefore the cattle were received by the Tex- versible error. The judgment is therefore as & Pacific Railway Company, and the ex- affirmed. act amount of damage occasioned to said cattle after being received by the Texas & Pa

MCBRIDE V. BURNS et al.* cific Railway Company, then you are instructed to find a verdict for the defendants."

(Court of Civil Appeals of Texas. May 24, In refusing this charge there was no error.

1905.) It is certainly the law in this state that, if 1. DEED-AMBIGUITY-CONSTRUCTION. appellants' negligence concurred with the

When there are two descriptions in a deed,

which are inconsistent with each other, the negligence of another in causing damages to

grantee is at liberty to select that which is most appellee's cattle, it could not escape liability. favorable to him. See Ft. Worth & Denver City Railway Com- [Ed. Note.-For cases in point, see vol. 16, pany y. Byers (Tex. Civ. App.) 35 S. W. 1082; Cent. Dig. Deeds, $ 315.) Texas & Pacific Railway Company v. Smith 2. VENDOR AND PURCHASER WARRANTY & White (Tex. Civ. App.) 79 S. W. 614; Tex

FAILURE OF TITLE. as Central Railroad Company v. O'Loughlin,

Where land is sold under a warranty of

title at so much per acre, and the title to a part 81 S. W. 1104, 12 Tex. Ct. Rep. 102; Texas thereof fails, the vendee is entitled to recover & Pacific Railway Company v. Slaughter, 84 from the vendor the value of the land to which S. W. 1085, 12 Tex. Ct. Rep. 99; Butterick title failed, and costs of suit. Publishing Company v. Gulf, Colorado & San

*Application for writ of error dismissed by Supreme Court for want of jurisdiction,

* The evidence is sufficient to support the

Appeal from District Court, Collin County; J. M. Pearson, Judge.

Action by J. H. Burns against W. J. MCBride and others. From a judgment in favor of the plaintiff, McBride appeals. Affirmed.

Thos. W. Thompson and Looney & Clark, for appell R. T. Sh n, for appellee bank.

FISHER, C. J. Appellee Burns brought this suit in trespass to try title against McBride to recover 25 acres of land out of the Madison Walker 320-acre survey. McBride answered, disclaiming as to all lands in said survey lying south of a line running from a point on the east boundary line of said surrey, from which-and here follows a description which it is not necessary to repeat-and & plea of not guilty as to all land lying north of said line. By special plea McBride also alleged that he purchased the land north of said line from B. D. Sachse, who warranted the title thereto; that a part of the consideration was three promissory vendor's lien notes against the said land, aggregating $3,800; that these notes were made payable to the Plano National Bank, and were given to it in the transaction as a substitute for a deed of trust then held against said land by the bank to secure a debt owing it by Sachse. Sachse was insolvent, and unable to protect his warranty; that the bank knew all of the facts when the land was purchased, and the notes given. He prayed that Sachse and the bank be made parties, and that, should the plaintiff recover any of the land, the purchase price of the part so recovered be deducted from the notes, and for general relief. The bank answered by general denial, and specially that it was not a warrantor of the land, and was an innocent purchaser of the notes, and certain other facts that were set up in the amended answer. The case was tried before the court without a jury, and judgment was rendered in favor of appellee Burns for the land, and in favor of the Plano National Bank and against Sachse on his warranty.

As the case was tried before the court without a jury, in view of all the evidence in the record bearing on the subject of boundary, we are of the opinion that if any error was committed in the ruling of the court as complained of in the first, second, and third assignments of error, if the ruling bad been different and in accordance with the views of appellant the conclusion reached by the trial court would not have been different.

The remaining assignments are complaints directed against the conclusions of fact and law filed by the trial court. The conclusions of fact and law are here set out in full, which we approve as substantially correct, in accordance with the facts.

in the Madison Walker survey in Collin county; that the Madison Walker survey consisted of 320 acres of land, out of which 200 acres in the north part of said survey was sold, and the land in dispute was a part of the 200-acre subdivision of said survey; that both plaintiff and defendant claim under a common source, to wit, John Johnson and George A. Wilson.

“(2) That on the 22d day of November, 1872, John Johnson and George A. Wilson sold to Robert McRae 200 acres of land in the north part of the Madison Walker survey, de scribed by the calls as follows, to wit: Beginning at the N. E. corner of the original survey; thence west 617 varas; thence south 1,82544 varas; thence east 617 varas; thence north 1,82512 varas to the place of beginning; containing 200 acres of land, more or less.

"(3) I find that the beginning corner of the above-described tract of land, to wit, the northeast corner of the original Madison Walker survey, is a well-recognized corner, and that the 200-acre tract described in the second finding of fact can, by following the calls for course and distance, be easily located upon the ground, and, in view of the fact that there are no calls for natural objects, except for the beginning corner of the Madison Walker survey, the 200-acre tract must be located only by commencing at the beginning corner as called for in the deed from Johnson & Wilson to McRae, and tracing the lines by course and distance; that, establishing the 200-acre tract in that way, there is barely 200 acres embraced within its calls.

"(4) That on the 24th day of April, 1874, Robert McRae executed a power of attorney to T. C. Goodner and James H. Jenkins, by the terms of which McRae authorized them to sell and convey the 200-acre tract of land described in the second finding of fact, which power of attorney was filed for record in the proper place on the 27th day of January, 1877; that this power of attorney recites that McRae lived in New Orleans, Louisiana.

“(5) That on the 27th day of January, 1877, Robert McRae, by his attorneys of record, T. C. Goodner and J. H. Jenkins, conveyed by general warranty deed to John H. Burns the following described tract of land, being 25 acres out of the 200-acre tract conveyed to Robert McRae by John Johnson and G. A. Wilson. The locative calls are as follows, to wit: 'Beginning at the S. W. corner of said 200 acre tract a stake, from which a Hackberry, 14 in. in dia. mkd. X brs. N. 20 W. 7 Iks.; thence east with the S. line of said 200 acre tract 25 chains and 97 Iks. to a stake the S. E. corner of said 200 acre tract, from which a bois d'arc 14 in. in dia. mkd. with an old X brs. S. 21 deg. W. 44 Iks., and an Elm mkd. with an old X brs. N. 8442 W. 31 Iks.; thence N. 9 chains and 62 Iks. to a stake from which a triple bois d'arc 18/14 in. in dia, is respectively one marked X brs. N. 27 W. 7 Iks.; thence W. 25 chains

“Findings of Fact. “(1) The court finds that the contest in this case is over the location of 25 acres of land

and 97 Iks. to a stake from which a forked ran the line, and by assuming that the fallen bois d'arc 24 in. in dia. marked X brs. S. forked bois d'arc at the northwest corner of 24 W., 12 lks.; thence S. 9 chains 62 lks. to the 25-acre tract, and as claimed by dethe beginning and containing 25 acres of fendants, was the original tree, marked by land.' That this deed was filed for record the original surveyor who ran the line as the in the proper place June 14, 1887. The con- northwest corner of the 25-acre tract, then sideration recited in this deed was $37.50 the 25-acre tract would be located way cash, and note for $37.50.

south of the south boundary line of the 200“(6) I find that the controversy in this acre tract which formerly belonged to Robert suit is over the location of the 25-acre tract McRae. of land described in finding No. 5; that, "(8) I further find that on the 2d day of if the 25-acre tract be located in the 200-acre February, 1877, Robert McRae conveyed by tract sold by Johnson and Wilson to McRae, special warranty deed to Richard Buckner then it would be located where plaintiff and Robert Buckner all the 200 acres, more or claims the same to be located, and plaintiff less, conveyed to bim by John Johnson and G. would be entitled to recover; but, if the 25- A. Wilson, and described in finding No. 5, and acre tract be located where defendant claims that this deed was filed for record in the propthe same to be, then it would be entirely er place on the 7th day of February, 1877. outside of the 200 acres sold by Johnson and This deed recited a consideration of $800 Wilson to McRae, and, if the calls of the cash, but there was no proof of any payment deeds should place the said land outside the of any consideration. This deed was filed for said 200-acre tract, then the defendant would record and recorded several years prior to be entitled to recover the land in dispute. the time when the deed from Robert McRae

"(7) I find that there is a conflict in the to John Burns was recorded, as described calls of the deed from Robert McRae to plain- in the fifth finding. I further find in this tiff, Burns, conveying the 25-acre tract, in connection that the failure of plaintiff to bave this: If the calls for natural objects be ig- his deed to the 25-acre tract recorded before nored, and the calls for course and distance the deed from McRae to Richard and Robert be allowed to control, then the land would Buckner was recorded did not inure to the be located where plaintiff claims the same benefit of the latter and those claiming under to be. I find, however, that there is a call them, for the reason that Richard and Robin the deed for a triple bois d'arc at the ert Buckner, when they afterwards sold the N. E. corner of the 25-acre tract, and a call land purchased by them from McRae, recogfor a forked bois d'arc at the N. W. corner of nized the validity of the sale of 25 acres by the 25-acre tract; that, if the land be locat- McRae to plaintiff', as will more fully appear ed by a course and distance, there is no triple from the next succeeding finding of fact. bois d'arc at the N. E. corner of said 25-acre "(9) I find that on the 22d day of July, tract, and no forked bois d'arc at the N. W. 1878, R. T. Buckner and R. A. Buckner by corner of said 25-acre tract, nor is there any warranty deed conveyed to L. A. Lollar 130 hackberry at the S. W. corner of the 200- acres of land described in the 200-acre tract acre tract, as called for in the deed to the conveyed by Johnson and Wilson to McRae, 25-acre tract, nor is there any bois d'arc and when Lollar's deed was executed it exor elm at the S. E. corner of the 200-acre pressly excepted out of said deed the 10-acre tract, as called for in the deed to the 25- tract sold by Robert McRae to W. R. Walacre tract. But I find on the east boundary lis January 27, 1877, and the 25-acre tract line of the Madison Walker survey, and at a sold by McRae to J. H. Burns January 27, distance of 13.77 chains south of where 1877, and the 35-acre tract sold by McRae course and distance would locate the N. E. January 27, 1877. The Lollar deed was filed corner of the 25-acre tract of land in dis- for record in the proper place July 22, 1877. pute, there is still standing a triple bois d'arc, “(10) I find that on the 6th day of Auwhich comports in marks and size, but not gust, 1885, F. M. Rogers and J. C. Lollar, as in distance, with the triple bois d'arc called executors of L. A. Lollar, deceased, conveyfor at the N. E. corner of said 25-acre tract; ed to Daniel B. Sachse the following describand I further find that there is a forked bois ed tract of land (being part of the Madison d'arc which has fallen upon the ground on Walker survey of 320 acres, and being part the west line of the 200-acre tract of land, of a 200-acre tract taken out of said survey): and situated 13.77 chains south of where 'Beginning at the N. W. corner of a tract of course and distance would place the N. W. 25 acres sold to John H. Burns from which a corner of the 25-acre tract of land, and that forked bois d'arc 24 in. in dia. mkd. X brs. said fallen bois d'arc comports in marks and S. 24 lks., W. 12 lks.; thence E. 25 chs. and size with the one called for in the deed to 97 Iks. to the N. W. corner of said Burns a plaintiff, but does not harmonize in any re- stake from which a triple bois d'arc 16/24 spect with course and distance, but, on the & 14 in. one mkd. X brs. N. 27 W. 3 links; contrary, if the land should be located by thence N. 5 chs. and 77 Iks. with the E. B. assuming that the triple bois d'arc called for line of said 200 acre tract to the S. E. corner in the deed at the northeast corner of the 25- of a 10 acre tract sold to W. R. Wallis; acre tract, as claimed by defendants, is the thence W. 25 chs, and 97 lks. to the S. W. one originally marked by the surveyor who cor, of said 10 acres; thence S. 5 chs, and

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