Easton v. Houston & T. C. Ry. Co. , 32 F. 897 ( 1887 )

Pardee, J.

The issue in the case is whether the contract between the intervenors and the receivers for a cut rate from New York to Austin was limited to immediate shipments.

The evidence of W. H. Pirebaugh, who made the contract with Patrick, agent of the receivers, is that at the time of making of the contract there was nothing said about a limit of time. “ There was no limit then as to a certain time of shipment.”

Mr. Patrick testifies: “My instructions were for immediate shipment. My impression is, I so stated it to Mr. Pirebaugh at the time, that they were for immediate shipment. It was a cut in rates, and I did not know how long it would last.” Fourteen days after the contract, on February 12th, on the refusal of the Morgan line being communicated, the receivers guarantied the contract, and Mr. Patrick is not positive that then he said anything about immediate shipment. The shipment was made on March 1st, and on March 4th, as Mr. Pirebaugh testifies, Mr. Patrick notified him “that the time had expired, and that the usual rates had been restored,” and in this testimony Mr. Firebaugh is not contradicted by either the impression or the recollection of Mr. Patrick.

This is practically the material evidence on the point oflimilation as to time of shipment under the contract. The defendants set up the limitation, and they fail to establish it by direct evidence; the impressions of their agent cannot overcome the positive testimony of the iutervenors.

The conduct, of the parties in relation to the shipment shows that neither intended or looked to what is now claimed as to immediate shipment. This appears by the fact that 14 days elapsed before the guaranty was given, and 16 more before the shipment was made, and by the significant fact that March 4th, three days after the shipment, the defendants’ agents notified intorvenors that the time had expired, and that the usual rates had been restored.

The exceptions to tlio master’s report should be sustained, and the in-tervenors should have a decree for the return to them'by the defendants of the sum of 8167.21, and for costs of intervention.