Grant v. Lehman Stern & Co.

ESTOPINAL, J.

Plaintiff, a public drayman, sues the defendant company for drayage of sundry bales of cotton.

His first claim is for drayage on cotton referred to in a bill marked exhibit '“A”, for $198.60, and the other for similar dtavage in re .bill “A 4”, for $197.49.

The Court below non-suited plaintiff as to the latter item and ■gave him a judgment for the former item of $198.60' against the defendant company.

The defendant has alone appealed. The case has been further narrowed down, by the defendant’s admission of its liability in the lower court, for drayage on 581 bales of cotton described in exhibit “A 1”, on which drayage of $87.15 is due plaintiff.

This leaves an amount' of $111.45 at issue between the parties.

The plaintiff, in his evidence, bases his right of recovery on the order book of the Southern Pacific (Railroad from whose depot the cotton was hauled by him and which shows that 581 bales were hauled by order of the defendant for which it admits its liability. •

The remainder of the cotton, drayage of which amounts to $111.45, is referred to in the record as “Lato'ur Cotton” and Werneke Cotton” and as such we shall hereafter refer to it.

Assuming, as we do, that the hauling of' all of this cotton was done by the plaintiff, we do not -believe that the plaintiff has shown enough. We are of the opinion that the -plaintiff should have shown the existence of a contract between -him and the defendant or in the absence of a contract, an order from the defendant, and that the hauling was for his account and innurred to his, defendant’s benefit.

January 23rd, 1905. Rehearing refused February 20th, 1905.

The Railroad books relied upon by plaintiff show the "Latour Cotton” to have been 'hauled for the account of -Corral and Sevilla and the "Werneke -Cotton” for the account of “Werneke”, and it will require more than a general statement dr inference to bring home to this defendant, liability for these two lots, “Latour” and "Werneke.”

Plaintiff must make out his proof clearly -and explicitly; and this he has failed to do- as regards the liability for the drayage of lots of cotton last mentioned.

It is. therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby amended- by reducing same from $198.60 to $87.15, and as thus amended the judgment is affirmed, without prejudice, however, to p-laintiffL right in any subsequent proceeding to sue for the balance alleged to be due for drayage on the “Latour” and “Werneke” cotton.

The costs of appeal to be taxed against the appellee and those of the lower court against appellant.