Walter v. Missouri Pacific Railway Co. , 71 Kan. 164 ( 1905 )

The opinion of the court was delivered by

William E. Smith, J.:

The court did not err in requiring plaintiffs to elect on which of the two counts or causes of action they would rely for a recovery. There was no averment in the second count that the formal contract of carriage made at Monticello, Ark., with the Missouri Pacific Eailway Company was mutually binding on the parties to it. Plaintiffs alleged that they signed the contract but that they did so without reading it, and that no alternative was given them except to sign it after the cattle had started to their destination, and that the agent told them it was necessary that it be signed by them. The brief reference to this contract indicates that plaintiffs were seeking to avoid the binding force of its provisions on them, with no intention of relying on- it as an obligation for the violation of which by the railway company they sought a recovery of damages. The ruling requiring an election as to which count of the petition the plaintiffs would stand upon had the legal effect, after the election was made to proceed under the first cause of action, of striking from the petition the second count. We are unable to see how this count, if it had been allowed to stand, could have aided the plaintiffs.

There is nothing in the letter, telegrams and verbal agreement between plaintiffs and Douthitt, which are set out in the first cause of action and relied on as a contract with the railway company for the carriage of the cattle, to show that Douthitt was the agent of the Missouri Pacific Railway Company. Plaintiffs, however, made this clear by the testimony of Douthitt himself, which they introduced in their own behalf. He testified:

“Ques. If the rate had been quoted by you or the information furnished by your office, as mentioned in 'Exhibit A,’ for what company would you then be acting, assuming that the shipment originated on the line of the St. Louis, Iron Mountain & Southern Railway? Ans. In any business originating on the Iron Mountain I would be acting for the Iron Mountain.

“Q. You would be so acting at that time? A. Yes, sir.”

“Exhibit A” referred to in the question was the letter of Douthitt, dated November 20, 1897, set out in the statement. It was thus shown by the testimony of the person with whom they contracted that he was not the agent of the railway company against which the action was prosecuted, but of another carrier on whose line of road the business originated, namely, the St. Louis, Iron Mountain & Southern Railway Company. By bringing forth this testimony plaintiffs removed all doubt respecting the identity of the company for which Douthitt was acting at the time the contract was made.

The judgment of the court below is affirmed.

All the Justices concurring.