Gulf, Colorado & Santa Fe Railway Co. v. McCorquodale , 71 Tex. 41 ( 1888 )

Acker, Judge.

Appellant contracted with appellees to receive from them at Temple, Texas, on the nineteenth day of May, 1884, five hundred and ninety-three cattle, and furnish cars and transportation to Fort Worth. At the time agreed upon, appellees had their cattle at the place appointed, and tendered them to appellant for shipment, in accordance with the contract. Appellant refused to receive the cattle, until the evening of the twenty-third of May, and this suit was brought to recover three thousand four hundred and eighty-eight dollars damages alleged to have been sustained b3r appellees, in consequence of appellant’s failure to comply with its contract.

The jury returned a verdict of three thousand four hundred and twenty-two dollars and eleven cents, upon which judgment was entered, but, on suggestion of the court, appellees entered a remittitur for one hundred and twenty-five dollars.

It is contended under the second and ninth assignments of error, that the appellant is not liable for damage to, and deterioration in the value of the cattle, while being held at Temple awaiting shipment.

Appellant had contracted to receive and ship the cattle on the nineteenth, and failed to comply with its contract. As a natural person would be, so it certainly is liable for any damage resulting to appellees, by reason of its breach of contract. Railway Company v. Nicholson, 61 Texas, 495. On the afternoon of the eighteenth, appellees informed appellant’s agent at at Temple, that they were ready to deliver the cattle the next morning, according to contract, and the agent instructed them to have the oattle at the pens next morning, and cars would be ready to ship them. When the cattle were tendered next morning at the pens, no cars were furnished, and appellant refused to receive them, but promised that cars would be furnished at once, and repeated this promise up to the afternoon of the twenty-first, thus inducing appellees to hold the cattle under herd, near the pens, until that time, when the agent of appellant informed appellees that there was a washout on the road between Temple and Fort Worth. Under this state of facts, it is contended that the delay in shipping the cattle, and the resulting damage are attributable to the act of God, in the unprecedented flood that broke appellant’s road. It appears that this act of God was not committed until the afternoon of the twenty-first, two days after the breach of contract by appellant, and it also appears that the cattle would have passed the place of the break in the road, had they been shipped at any time after they were tendered and ready to be shipped, up to the morning of the twenty-first. We do not think that appellant can avoid liability for damages, resulting from its breach of contract, because of an act of God occurring after such breach, and we think the court did not err in so holding.

It is also contended that the court erred in refusing to permit; appellant to prove that the cattle claimed to have been damaged, had been sold by appellees before they were shipped, to a party in Fort Worth, and that the reason the purchaser did not take them when they arrived in Fort Worth, on the twenty-fourth of May was, because they were not the grade of cattle represented by appellee, and not because they had been damaged by the delay in shipping. How, we can not see what this testimony had to do with determining the issue in this case. If there was a contract, and a breach of that contract without a legal excuse for such breach, the only remaining question was, the extent of damage to these particular cattle. The question whether, or not, appellees had complied with their contract with a third party that the cattle were of a particular grade, could shed no light on any issue in this case, and we think the court did not err in the ruling here complained of.

The court permitted appellees to prove, over the objection of appellant, that there were about forty empty stock cars in appellant’s yard at Temple when the1 cattle arrived there, and that these cars remained there until the twenty-third, when the cattle were shipped in a part of these same cars, and this is assigned as error.

Appellant attempted to explain its failure to receive and ship the cattle up to the time of the break in the roads, upon the theory that it was greatly crowded with the business of carrying stock at that time, and could not get the necessary cars to Temple. But this would be no legal excuse for the breach of the contract, and we presume the court admitted the evidence in rebuttal of such evidence as had been offered in support of appellant’s claim of inability to get the cars to Temple. There was no claim for exemplary damages, and none seems to have been given, and we do not think the evidence could have prejudiced the rights of appellant. The remaining assignment or error relates to the sufficiency of the evidence. Without reviewing the evidence, we think it sufficient to say, that there was legal evidence to support the verdict, and the verdict certainly is not against the great preponderence of the evidence. In such case, it is well settled, that this court will not disturb the verdict.

There being no error in the judgment of the court below, we are of opinion that it should be affirmed.

Affirmed.

Opinion adopted June 5, 1888.

Stayton,

Chief Justice.