Baker v. Missouri Pacific Railway Co. , 1885 Mo. App. LEXIS 225 ( 1885 )

Ellison, J.

The ruling of the trial court is evidently based on the idea that the matters set forth in plaintiff’s petition were not sufficient to excuse plaintiff from complying with the contract. We think this was error. The petition alleges that he did not make his claim for damages as required, for the reason that defendant, by its own wilful act, rendered it impossible, by refusing to deliver to him the sheep at the point of delivery and destination, but on the contrary in sending them on another railway line, against plaintiff’s protest, to a station one hundred miles distant from any office of defendant. That he first discovered the damage done .after the delivery to him at Albany, and that he did not •discover it sooner by reason of defendant’s wrongful conduct.

We think this presents a clear excuse for plaintiff. If we should hold it was not, it- would be tantamount to-affirming that defendant could avoid all its shipping obligations under contracts of this sort by the simple device of wilfully and wrongfully taking its freight to a point where it would be out of plaintiff’s power to give them the notice required. It is not allowable that defendant can prevent a fulfillment of the contract and then assert this same non-compliance which it brought about as its discharge for its own breach. Besides, by the terms of this contract, it will be seen that the notice must be given before said stock is removed from the place of destination. This evidently means before it is removed by plaintiff or by his authority ; but in this case, plaintiff did not remove the stock from Cisco, the place of destination. The removal was by defendant, and against plaintiff’s protest. The object of the contract was to prevent plaintiff from removing the stock till defendant had had an opportunity to examine into, for itself, the alleged damage.

The judgment is reversed and the cause remanded for trial.

All concur.