City Nat. Bank of El Paso v. El Paso & N. E. Ry. Co. , 1920 Tex. App. LEXIS 1027 ( 1920 )

HIGGINS, J.

The City National Bank of El Paso, Tex., appellant, brought this suit against the appellees, El Paso & Northeastern Railroad Company, and various other railroad companies, alleging that the defendants were railroad corporations engaged in business as common carriers, owning and operating a line of railroad extending from El Paso, Tex., to Kansas City, Mo.; that on October 27, 1911, in consideration of the freight rate paid to the defendant El Paso & Southwestern Company, the El Paso & Northeastern Railroad Company, for. itself and its codefendants, agreed in writing signed by the plaintiff and El Paso & Southwestern Company to safely carry from El Paso to Kansas City, Mo., and there deliver to the Eirst National Bank of Kansas City, the consignee at said place, 847 head of cattle of the value of $20,000, the property of plaintiff, then and there at El Paso, in pursuance of said agreement, delivered to the El Paso & Northeastern Railroad Company, in pursuance of the agreement made by the El Paso & Southwestern Company, who then and there received and accepted the cattle upon the agreement, and for the purposes mentioned in behalf of the defendants; that defendants did not safely carry and deliver said cattle in pursuance of said agreement, but so carelessly and negligently acted in regard to the same in their business as common carriers that the cattle were lost to the plaintiff and not delivered to the said consignee to the plaintiff’s damage in the sum of $10,101.18; that defendants have failed and refused and still fail and refuse to deliver the cattle to the Eirst National Bank, consignee, in pursuance of said agreement, or to the plaintiff, and by' reason of the carelessness and negligence of defendants the plaintiff has been damaged as aforesaid, for which judgment was prayed.

The answer of the defendant is quite lengthy and need pot be stated at length. It is sufficient to say that among other defensive matters pleaded it was set up that the contract was in writing and was entered into by the plaintiff through its agent J. A. Peters, who instructed appellees to deliver the cattle at Kansas City to J. P. Peters Commission Company, which was done; that the order to so deliver the cattle was in fact a part of the transportation contract, but the failure to indorse such order on the same was due to mutual mistakq of the parties; and that such delivery discharged them.

By a supplemental petition the plaintiff replied to certain defensive matters set up by the defendants, namely, the two years’ statute of limitation, and a failure to give written notice of the damages within four months as provided by the bill of lading. In this supplemental petition it is again averred that the terminal carrier never in fact delivered the cattle to the plaintiff, the consignor, or to the Pirst National Bank of Kansas City, or to any other person or corporation authorized by the consignor or consignee, by the terms of the contract to receive delivery.

By a trial amended petition it was averred that the defendants issued and delivered the bill of lading for the shipment without inserting therein that the consignee should be the Pirst National Bank of Kansas City, Mo., care of J. P. Peters Commission Company, and that it was through negligence and fault of defendants in permitting the bill of lading to be so issued and delivered to the plaintiff herein without giving notice to it or advising it that there had been direction or instructions by J. A. Peters to bill or ship the cattle to the Pirst National Bank, care of J. B. Peters Commission Company, and had said bill of lading contained said directions plaintiff would not have accepted samo, but had accepted the bill and relied thereon without notice of said intention and had the bill contained the directions alleged to have been given by Peters, plaintiff would have notified the defendant not to deliver the cattle to the Peters Commission Company, and by reason of their conduct and act in putting into circulation, issuing and delivering and permitting to be issued to plaintiff said bill of lading without said instructions (care of Peters & Company) thereon, the defendant was estopped to deny same, its effect or its validity, or to set up any undertaking or agreement with said J. A. Peters.

The ease was tried before a jury and submitted upon special issues, and upon the jury’s findings judgment was rendered in favor of the defendants, from which the plaintiff prosecutes this appeal.

The record discloses that for some time prior to the date of the shipment in question John T. Cameron had been buying cattle in the interior of Mexico and shipping them to Juarez, Mexico, whence they were entered into the United States at El Paso.

According to the testimoily of J. F. Williams, vice president of the plaintiff, Mr. Cameron would buy the cattle in Mexico with money furnished by a bank at Chihuahua. That bank would consign the cattle to the plaintiff with draft attached for the amount of the purchase price. After being cleared through the custom' house and delivered to the plaintiff on the American side, plaintiff would then refund the purchase price to the Chihuahua Bank and take over the transaction from Cameron and ship the cattle to Kansas City for sale; that they had no arrangement for any one to handle them in Kansas City; that J. A. Peters was an employee of Cameron and looked after the shipping of the cattle and billed them out under' our instructions. Williams was the representative of the plaintiff in handling the transactions relative to the Cameron cattle, and further testified that neither he nor any one else from the bank looked after the shipments; that J. A. Peters looked after the shipments, or nearly all of them, and that he knew J. A. Peters was looking after the shipments; that they presumed he was shipping the cattle to Kansas City; and that they were being handled there by the J. P. Peters Commission Company. He admitted that the bank was allowing J. A. Peters to bill the cattle out for it and look after getting the cattle to Kansas City. He testified that Peters brought him the bill of lading covering the shipment in question and it was attached to a draft drawn on the J. P. Peters Commission Company of Kansas City for the amount of the money advanced by the bank and that this draft and bill of lading was sent to the Pirst National Bank of Kansas City with instructions to release the cattle to the commission company upon payment of the draft. The draft was never paid, and the same together with the bill of lading was later returned to the plaintiff.

It was further shown by the evidence that the shipment in question was the last of the Cameron shipments and that prior to that time there had been 18 or 20 train leads of the Cameron cattle which had been handled and shipped out by the plaintiff in the manner aforesaid, the transactions having extended over a period of several months. This last shipment of cattle was delivered by the terminal carrier to the J. P. Peters Commission Company at Kansas City, Mo., without the surrender of the bill of lading.

The material portions of the bill of lading are as follows:

“Contract.

“Executed in duplicate at El Paso, Texas, Station, October 27, 1911.

“This agreement made between the El Paso & Southwestern Company of the first part, and City National Bank of- the second part, wit-nesseth:

“That for the consideration and mutual covenants, and conditions herein contained, the said first party will transport for the said second party the livestock described below, and the parties in charge thereof, as hereinafter provided: 28 cars, said to contain 147 head of cattle, from El Paso, Texas, station to Tueum-cari station, consigned to the First National Bank, Kansas City, Bio., at published tariff rate; said rate being less by virtu’e of the execution of this contract than rate for shipment transported without limitation of carrier’s liability except at common law, and in consideration of said rate, and other considerations, it is mutually agreed between the parties hereto as follows:”

In paragraph 8 of the bill of lading it was provided that the second party at his own risk and expense is to take care of, feed, water and attend to, said stock, etc., and holds first party harmless on account of any loss or damage to his said stock while being in his charge and attended by him or his agents or employees.

In paragraph 5 it was provided: “That when first party shall furnish for the accommodation of second party laborers to assist in loading or unloading his stock, they shall be entirely subject to his orders.”

In paragraph 6 it was also recited: “That second party expressly agreed that as a condition precedent to his right to any damage to his said stock, second party will give notice in writing of its claim therefor,” etc.

“Eleventh. No person other than the owner of the stock shipped, or his duly authorized agent in the name of the owner, shall be allowed to sign this contract.”

“Thirteenth. First party hereby admits that it has received at the station and on the date first above written, from second party, certain livestock as hereinbefore described, to be transported as aforesaid at the rate or rates, and subject to the rules and conditions hereinbefore and hereinafter referred to, and agrees that said livestock will be delivered as aforesaid unto second party or order, or assigns, or connecting lines if destined beytmd, subject to the conditions hereinbefore and hereinafter expressed on the payment of transportation charges as agreed.”

The contract was signed thus:

“J. C. Wallwork, Agent for the Company. City National Bank, by J. A. Peters, Shipper.”

The waybills covering the shipment bore this notation:

“Name of Shipper: City National Bank.

“Name of Consignee: First National Bank, Kansas City, Mo., c/o J. P. Peters Commission Company, Priv. St. Louis, Mo.”

The waybills accompanied the shipment and were for the information and guidance of the employees of the defendants in handling the shipment. The cattle were delivered by the terminal carrier to the J. P. Peters Commission Company upon the notations made upon the waybills.

The issues submitted to the jury and answers thereto were as follows:

“Question No. 1. Do you find from the evidence by a preponderance thereof, that contemporaneous with, or just prior to the execution and delivery of the bill of lading covering the shipment of cattle in question in this suit, it was mutually agreed by and between J. A. Peters, acting for the City National Bank, and the agent of the receiving carrier at El Paso, Tex., that such cattle should be consigned by the bill of lading to the First National Bank of Kansas City, Mo., care of the J. P. Peters Commission Company? Answer. Yes.

“Question No. 2. Do you find from the evidence, by a preponderance thereof, that when the bill of lading covering the shipment of cattle in question was issued that the same, by the mutual mistake of J. A. Peters, acting on behalf of the City National Bank, and the said agent ■ of the defendant carriers acting in their behalf, omitted to state in the bill of lading in accordance with their mutual agreement, that the cattle were consigned .to the First National Bank care of, the J. P. Peters Commission Company, if such agreement there was? Answer. Yes.

“Question No. 3. Do you find from the evidence, by a preponderance thereof, that J. A. Peters, directed the agent of the defendant carriers receiving the cattle at El Paso, shipment of which is in question, to place on the waybill that the cattle were consigned to the First National Bank of Kansas' City in care of the J. P. Peters Commission Company? Answer. Yes.

“Supplemental Question by Court. Was such direction on the part of J. A. Peters to said agent, if you have found he gave such direction, prior to, contemporaneous with, or subsequent to the execution and delivery of the' bill of lading covering this shipment of cattle? Answer. Contemporaneous with.

“Question No. 4. Do you find from the evidence, by a preponderance thereof, that in the case of the shipments of cattle made prior to the shipment in question, said prior shipments consigned by bills of lading by the City National Bank of El Paso, Tex., to the First National Bank of Kansas City, that the delivering carrier delivered same to the J. P. Peters Commission Company at Kansas City, prior to the payment of the drafts drawn on the Peters Commission Company attached to the bills of lading? Answer. Yes.

“Question No. 5. Do you find from the evidence, by a preponderance thereof, that in cases of prior shipments of cattle inquired about in question No. 4, that the said First National Bank had notice prior to the arrival of the shipment in question herein, that the delivering carrier had delivered such prior shipments or some of same to the Peters Commission Company prior to the payment of the drafts drawn on said Peters Commission Company for such prior shipments, if any of them had been delivered prior to the payment of the drafts, and said bank ratified and acquiesced therein? Answer. Yes.

“Question No. 6. Do you find from the evidence, by a preponderance thereof, *hat in reliance upon the ratification or acquiescence of the First National Bank of Kansas City in the delivery of said prior shipments of cattle to J. P. Peters Commission Company before the payment of the drafts attached to the bills of lading, if said shipments had been delivered prior to the payment of the drafts, and said bank did ratify or acquiesce therein, that the delivering defendant delivered the shipment of cattle in question in this suit to the J. P. Peters Commission Company without the payment of the draft attached to the bill of lading? Answer. Yes.

“Question No. 7. Do you find from the evidence, by a preponderance thereof, that the acquiescence or ratification of the First National Bank of the delivery of prior shipments before payment of the drafts attached to the bills of lading, if prior shipments were so delivered and the First National Bank acquiesced and ratified same, was reasonably sufficient to induce the belief on the part of the agent of delivering defendant carrier that said J. P. Peters Commission Company was duly authorized to receive said cattle for the First National Bank of Kansas City? Answer. Yes.

“Question No. 4 Bequested by Plaintiff. Do you find from the evidence, by a preponderance thereof, that had such bill of lading recited that the cattle were to be delivered to the First National Bank, care of the J. P. Peters Commission Company, that plaintiff could and would have notified the defendants, prior to the delivery to the J. P. Peters Commission Company, not to deliver said cattle without the payment of the draft in the First National Bank of Kansas City? Answer: No.”

Jarvis, the bill clerk of the receiving carrier, testified that J. A. Peters gave the bill of lading instructions on the cattle, and that his instructions were that the cattle were billed from the City National Bank to the First National Bank of Kansas City, care of the J. P. Peters Commission Company, and that there had been previous shipments during the month on which Peters had given the billing instructions; that he wrote the waybills to accompany the shipments at the direction of J. A. Peters; and that he was asked by Peters to waybill the cattle to the First National Bank of Kansas City, care of the J. P. Peters Commission Company.

J. A. Peters testified:

“They came up here from Mexico, having been purchased by Mr. Cameron consigned to the City National Bank of this city. That is what I mean by ‘legal title,’ that they were consigned to the City National Bank here. When they reached El Paso, they were handled in the Southwestern stockyards, fed, watered, and entry made at this port. I took charge of them on behalf of the City National Bank when they reached here, and have them handled. They were handled in public stockyards, which serves the public generally. I took charge of them not only at the instance of the City National Bank but also of Mr. Cameron and the Peters Commission Company of Kansas City. I had charge of them down there in the stockyards. I do not know how long they remained there before being shipped out; it took two or three days to get them released and forwarded on. I signed all the contracts and looked after that, and all the shipments we had. I signed the live stock contract under which the cattle moved out of here as agent of the City National Bank. I signed it ‘City National Bank by J. A. Peters.’ I had been handling all of those shipments; this was one of numerous shipments. This is the contract which I executed, that bears date October 27th. These are the waybills issued by the El Paso & 'Southwestern System, dated October 27, 1911, under which the cattle in question moved. It appears in those waybills that the cattle Were consigned by the City National to the First National Bank of Kansas City, care of J. P. Peters Commission Company. I billed them that way. As to whether I directed the clerk of the railroad that issued the bill of lading to bill them that way, that is the billing I gave the clerk of the railroad, that issued the bill of lading at the joint warehouse. I think I gave the agent the directions, with reference to the shipment, at the same time the contract was executed. My recollection is so, undoubtedly so. When I executed the contract I directed the agent how to bill. I directed him to bill care of the J. P. Peters Commission Company. I don’t remember exactly, but I should judge that was about the eighteenth or twentieth train of cattle that we had handled from Mexico consigned by the City National Bank to the First National Bank of Kansas City about that time. Practically all of those shipments were handled under the same agreement between Mr. Cameron and the City National Bank and myself. Those shipments were made before the shipment in question, right up to two or three or four trains a week, up to the time of this shipment. Prior ■to the date of this shipment I had been handling those 18 or 20 shipments at the rate of about 3 or 4 train loads a week. I do not remember if I took the contract under which these cattle moved after I had executed it; I might have taken the contract at that time, or they might have called a messenger, and had it sent up to the bank; we bill the cattle out, but we don’t got the contract until after the cattle are loaded, so they can put the car numbers on them. It was customary at that time, if I had time, I went down and got the duplicate contract myself, but if I was busy I sent a messenger. This contract was sent to the City National Bank and attached to draft on Peters Commission Company, Kansas City. After I had given directions about the waybills and the contracts had gone to the bank, I signed the draft to which the duplicate contract was attached. I had nothing to do with it. After the cattle left’ town I had nothing further to do with it. * * *

“The first shipments of the 18 or 20 were not consigned to the First National Bank care J. P. Peters Commission Company like this shipment was; I do not remember just how many were, but several shipments previous to this one were consigned the same way as this shipment. I know the reason why the cattle going to Kansas City were consigned to J. P. Peters Commission Company in this particular case: I might explain that better by an illustration of one shipment that arrived there during the night in very poor condition, and being billed to the bank, we could not get the cattle released until the bank. opened in the morning, and by the time we got back from the bank with the bill of lading, it would be about 9:30, so that by the time we got possession of the cattle and fed and watered them, the day’s market would be over. That happened during the fore part of the shipments. Subsequent to that time the waybills were changed so as to send them care of J. P. Peters Commission Company.

“Cross-Examination.

“I do not remember that the City National Bank ever instructed me to bill these cattle in care of the Peters Commission Company. They never did that I remember of. I had no authority to sell the cattle without handling them for the City National Bank; we sold numerous shipments here. * * *

“I do not remember that the City National Bank authorized me to bill these cattle care of the Peters Commission Company instead of to the First National Bank of Kansas City. I do not remember of ever talking to them about it, or telling them that I had done it. I would not want to swear either way. * * *

“My interest in the cattle was merely an equity and the City National Bank had title and possession and claimed the cattle until their money was repaid to them, and it was the understanding that X had no right to release those cattle from the possession and ownership of the City National Bank by anything that I did until they were first paid for.”

Other facts in the case will be indicated in the course of the opinion.

The assignments will not be considered in the order in which they are presented.

Under the tenth and eleventh assignments it is contended that the answers of the jury to questions 1 and 2 are contradictory to and unsupported by the evidence. The shipping clerk, Jarvis, testified that Peters directed that the cattle be billed to the First National Bank, care of the J. P. Peters Commission Company. J. A. Peters also testified that he directed the clerk how to bill the cattle and to bill them to Kansas City, consigned to the First National Bank, care of the J. P. Peters Commission Company.

J. A. Wall work, the joint agent of the defendants, testified that a bill of lading- always precedes the waybill and that the waybills are made up from the bills of lading; that waybills are for the information of the .conductor of the train and accompany the shipments and the shipper has nothing to do with waybills; that while waybills should be made out to conform to the bills of lading, but sometimes the contracts are made up ánd the shipper comes around and asks you to add something and you put it on one and forget to put it on the other. Neither the shipping clerk, Jarvis, nor Peters, explained why the bills of lading did not show that the cattle were shipped to the First National Bank, care of the J. P. Peters Commission Company; but it ’ clearly appears from the evidence indicated that' instructions to that effect were given by Peters, and that in billing the cattle the shipping clerk was governed by his instructions and should have made the proper notation to that effect upon the bills of lading, but for some unexplained reason failed to do so, but the inference is that both Peters and Jarvis mutually overlooked incorporating the full instruction in the bills of lading. Under the evidence indicated, questions Nos. 1 and 2 are amply supported by the evidence.

Under the twelfth, thirteenth, and fourteenth assignments the sufficiency of the evidence to support the findings upon issues 5, 6, and 7 is questioned. There may be no direct evidence to support these findings, but in the light of all the facts and circumstances in the case the findings are supported; but under the view this court takes of the case these findings are noncontrolling and it is immaterial whether or not the evidence supports same.

The fourth assignment is to the effect that there was no evidence to show that J. A. Peters was authorized by plaintiff to ship or bill the cattlein care of the J. P. Peters Commission Company, and that the burden of proof was upon the defendants who are seeking to reform the contract to show that Peters was authorized by plaintiff to so bill the same, and in the absence of such proof plaintiff is not bound thereby. In view of the failure of the plaintiff to deny under oath the authority of Peters to execute the written contract in question, it may be doubted whether the appellant is in a position to question his authority in the premises. Article 1906, subd. 8, R. S. But waiving this consideration, Peters clearly was acting within the apparent scope of his authority when he gave the billing directions in question, and appellant therefore cannot avail itself of any secret limitation upon his authority. It is shown that there had been many preceding shipments of the Cameron cattle, and that in most of these preceding shipments Peters had acted for the bank in shipping and billing the cattle out. A shipper who intrusts to another authority to ship a commodity apparently confers upon him plenary power to give the necessary billing instructions, and, unless the carrier has knowledge of some fact sufficient to put it upon notice of a limitation upon such apparent general authority of the shipping agent, such carrier is not bound by any secret limitation imposed by the shipper upon his agent. There is nothing to indicate that the receiving carrier in this case had any knowledge of any limitation upon the authority of Peters to give billing instructions, but apparently he had plenary power in this respect conferred ujCmn him by the appellant, and it is bound by the instructions which he gave.

Under the first and second assignments it is asserted that the court erred in refusing to give a peremptory instruction in favor of the plaintiff, and that the court erred in rendering judgment in favor of the defendants because under the pleadings and bill of lading and the evidence and findings of the jury the defendants were not entitled to a verdict.

It is contended by the appellant that the thirteenth paragraph of the shipping contract constituted what is commonly known as an “order” bill of lading; that the bill of lading upon its face discloses that the plaintiff was the owner of the cattle, and by the thirteenth paragraph reserved to itself the jus disponendi, and defendants had not the right to deliver the cattle to any one but the plaintiff or his order and upon production and surrender of the bill of lading properly indorsed and having failed to deliver to the plaintiff, or its order, and without surrender of the bill of lading, the defendants are liable; that, where a shipment is made upon a shipper’s order bill of lading, the carrier cannot excuse himself for misdelivery unless such misdelivery is due to the fault of the shipper. The appellant takes the position that an order bill of lading is radically different from what is commonly known as a “straight” bill of lading and the rules of law applicable to order bills of lading are to be here applied. Numerous authorities are cited to the effect that a bill of lading containing provisions similar to that contained in the thirteenth paragraph constitute an order bill of lading, that under such bills the jus disponendi is reserved to the shipper, and that the carrier has no authority to deliver to any one except the shipper or his order and upon surrender of the bill of lading properly indorsed. The correctness of the authorities cited is not questioned, but upon the issues presented by appellant’s pleading they have no application here. The substance of the plaintiff’s petition has been indicated at some length, and it predicated its cause of action upon a contract which it alleged bound the carriers to safely carry the cattle to Kansas City and there deliver the same to the First National Bank, and that defendants had failed and refused to deliver to said bank, or to plaintiff, or to any other person or corporation authorized by the consignor, or the consignee, by the terms of said • contract to receive delivery.

If the contract be reformed so as to show that the cattle were billed to the First National Bank, care of the J. P. Peters Commission Company, then the allegations of the petition would fail, for delivery to the commission company was shown. It has been a number of times held that where goods are shipped to the consignee, care of another person, it is a sufficient delivery if made to the person in whose care the goods were so shipped. Elliott on Bailroads (2d Ed.) par. 1524a; Ela v. Express Co., 29 Wis. 611, 9 Am. Rep. 619; Russell v. Livingston, 16 N. Y. 515; Express Co. v. Hammer, 21 Ind. App. 186, 51 N. E. 953.

In this state it has been often held that the sending of a telegraphic message in care of a third person necessarily constitutes such third person the agent of the sendee with authority to receive-the message and that delivery to the third person is sufficient. Tel. Co. v. Young, 77 Tex. 245, 13 S. W. 985, 19 Am. St. Rep. 751; Tel. Co. v. Shaw, 40 Tex. Civ. App. 277, 90 S. W. 58. There is no reason why the same rule should not apply to a contract of carriage.

Under the contract, as pleaded, the carriers were bound to carry the cattle to Kansas City and there deliver to the First National Bank, and the cause of action is predicated upon the failure of the bank to deliver to such consignee or to plaintiff, or to any other person authorized to receive the same. Had the petition declared upon a contract binding the carriers to transport and deliver to the shipper, or his order, the authorities and argument of the appellant would be applicable. Not having declared upon a shipper’s order contract which reserved the right of disposition to the shipper, the plaintiff is not entitled to recover simply because his evidence shows a contract of that nature. Evidence, however, adduced without pleading to support it, will not support a judgment. Middlebrook v. Zapp, 73 Tex. 29, 10 S. W. 732; Jamison Gin Co. v. Measels, 207 S. W. 365, and cases there cited.

Under the third assignment the proposition is advanced that the defendants weré not entitled to reform the shipping contract so as to show a billing in care of the J. P. Peters Commission Company because the alleged mistake was caused by its negligence, and for the further reason that mistake will not be relieved against and an instrument reformed where the opposing party cannot be put in statu quo.

As to the negligence of the parties, it would seem that the bank’s agent, Peters, was equally at fault with the shipping clerk, Jarvis. The term “mistake” carries with it the idea of fault, but the mere fact that a mistake was made in an instrument does not show such negligence as to bar the right of reformation, for, if that were so, a court of equity could never interfere. In Kelley v. Ward, 94 Tex. 289, 60 S. W. 311, this same contention was made, and in thus disposing of the same Justice Williams said:

“Where both parties are thus mistaken as to the effect of the writing and ignorant of its misstatement of the agreement, the failure of one to understand,, through omission to read or give sufficient attention to its contents, cannot avail as a defense to the other, equally in fault, against a suit to correct such mistake. Befer-ring to this subject, the Court of Appeals of New York, in the first case above cited, says: ‘Indeed, in most of the cases to be found in the books, where relief has been sought against written instruments on the ground of fraud and mistake, the complaining parties were chargeable with the same kind of negligence which exists in this case, to wit, the omission to read or understand the contents of instruments executed or accepted. It has certainly never been announced as the law in this state that the mere omission to read or know the contents of a written instrument should bar any relief by way of a reformation of the instrument on account of mistake or fraud. It is the general rule that where a written instrument fails to conform to the agreement between the parties in consequence of the mutual mistake of the parties however induced, or the mistake of one party and fraud of the other, a court will reform the instrument so as to make it conform to the actual agreement between the parties.’ In most of the cases referred to, the provisions of the writings against which relief was sought were quite as plain as those of the instrument here involved.

“The mere fact, therefore, that Ward and his attorney failed to understand the writing according to its true legal effect, when the opposite party shared in the error, cannot be held by this court as legally precluding him from relief.” ,

Upon the authority of that case and many others which might be cited, the contention of appellant that the right to reform the instrument is barred by the appellee’s negligence is overruled. Neither is there any merit in the contention that the instrument should not be reformed so as to show the true agreement and intention of the parties because the bank cannot be put in statu quo. It seems to us that there is nothing in this case to prevent the application of the well-settled rule that a contract will be reformed so as to show the true agreement between the parties where, by mutual mistake, the contract as drawn fails to do so. The jury having found that the bill of lading by mutual mistake failed to show that the cattle were to be billed to the First National Bank, care of the J. P. Peters Commission Company, the court properly treated the contract as it should have been written. Ross v. Armstrong, 25 Tex. Supp. 368, 78 Am. Dec. 574; Kelley v. Ward, supra.

The fifth assignment complains of the refusal to submit an issue requested by the appellant, as follows:

“Do you find from the evidence, by a preponderance thereof, that the plaintiff, City National Bank, on receipt of the bill of lading in question in this suit, relied on same as expressing the true contract between the parties, and were without notice that the waybill directed that the cattle be delivered to the First National Bank care of J. P. Peters Commission Company?”

This issue was noncontrolling, and, had it been submitted and answered in favor of the appellant, it would not have affected the right of the defendants to a judgment under the pleadings, evidence, and other findings of the jury.

The sixth, seventh, and eighth assignments relate to the admission of evidence. The error, if any, in the admission of this testimony, was harmless and is not ground for reversal.

Under the ninth assignment error is also assigned to the admission of evidence to the effect that it was the general custom in Kansas City to handle and deliver cattle shipments on the waybills. The proposition being that the positive and unambiguous terms of the written contract as evidenced by the bill of lading cannot be controlled by a custom that varies therewith. This testimony was admissible for the purpose of showing that the cattle were handled in the manner that J. A. Peters, appellant’s shipping agent, knew they would be handled and intended that they should be handled and in corroboration of the contention of the appellant that the true contract and agreement between the parties was to deliver these cattle to the J. P. P;eters Commission Company, which direction was omitted from the bills of lading by the mutual mistake of the shipping agent, Peters, and the bill clerk of the receiving carrier. But if it be not admissible its erroneous admission presents no ground for reversal, as the controlling facts in this case are that J. A. Peters, appellant’s shipping agent, acted within the apparent scope of his authority in directing that the cattle be shipped in care of the J. P. Peters Commission Company; the further fact that by mutual mistake such direction was not incorporated in the shipping contract; the fact that the cattle were delivered to the Peters Commission Company, and that plaintiff’s cause of action is based upon a contract, which, it was alleged, bound the carriers to deliver the cattle to the consignee.

Upon the -views expressed, all of the assignments of the appellant are overruled, and the judgment affirmed.