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timate, for which reason the contractor aban- "Special Issue No. 1. Do you or not find from doned the contract, he was entitled to a lien. the evidence that Dunderdale & Eastburn were

[Ed. Note.--For other cases, see Mechanics' the agents and representatives of defendant F. Liens, Cent. Dig. 8 124; Dec. Dig. Om93.]

B. King? Answer: We find they were.

“Special Issue No. 2. Do you or not find from 4. APPEAL AND ERROR Omw934-PRESUMPTIONS the evidence that defendant F. B. King authorIN SUPPORT OF JUDGMENT.

ized Dunderdale & Eastburn to enter into a conWhere, in an action by a contractor who tract with plaintiff, J. B. Collins, to install the installed the plumbing and heating in a building heating and plumbing fixtures in defendant's to recover the amount due him and for the fore- building, and to bind defendant in the cost closure of a lien, the court did not submit any thereof? Answer: We find he did. issue as to plaintiff's right to a lien, and defend

"Special Issue No. 212. Did George Dunder. ant did not request the submission of such an dale, as the agent of the defendant F. B. King, issue, an assignment that the court erred in de- in fact enter into a contract with the plaintiff, creeing the foreclosure of a mechanic's lien for J. B. Collins, in which he purported to act as the reason the jury made no finding on that the agent of É. B. King? Answer: Yes. issue would be overruled under Rev. St. 1911, art. 1985, providing that upon appeal or writ of issue No. 212 in the affirmative, then, and only

“Special Issue No. 3. If you have answered error an issue not submitted and not requested in that event, you will answer: What amount by a party to the cause shall be deemed as found do you find 'from the evidence is the balance by the court in such manner as to support the due plaintiff on said contract? Answer: $1, judgment, provided there be evidence to sustain 342.05. such a finding.

“Special Issue No. 4. Did or did not plaintiff, [Ed. Note.-For other cases, see Appeal and J. B. Collins, furnish on defendant's building Error, Cent. Dig. $$ 3777-3781, 3782; Dec any extra labor and material? Answer: He did. Dig. Om 934.]

*Special Issue No. 5. If you have answered 5. APPEAL AND ERROR 1062-HARMLESS issue No. 4 in the affirmative, then and only in ERROR-SPECIAL ISSUES-ISSUES SUBMITTED. that event you will answer: Did or did not de

In an action on a contract, an assignment fendant King authorize any person to contract that the court erred in submitting an issue as for and bind defendant King to pay therefor? to whether certain parties were defendant's Answer: We find he did. agents because the controverted issue was not

"Special Issue No. 6. If you have answered whether they were his agents, but whether issue No. 5 in the affirmative, then, and only they were authorized to enter into the contract, in that event, you will answer:

What person would be overruled, where the court submitted or persons do you find defendant King authorizanother issue as to the authority of such agents ed to make contract with plaintiff, and what to enter into the contract.

amount do you find from the evidence was Error, Cent. Dig. $$ 4212–4218; Dec. Dig. Om 00, and extras amounting to $366.25." [Ed. Note. For other cases, see Appeal and agreed to be paid ? Answer: We find Dunder

dale & Eastburn. The original contract $2,700.1062.] Appeal from District Court, Harris Coun

Upon which a judgment was rendered for ty; A. R. Hamblen, Special Judge.

appellee for the sum of $1,342.05, with fore

closure of lien. Action by J. B. Collins against F. B. King and wife. Judgment for plaintiff, and de

[1] Assignments 1 to 5 urge that (a) the fendants appeal. Affirmed.

charge of the court, (b) the findings of the

jury, and (c) the judgment rendered are not L. A. Carlton and John Broughton, both of supported by the pleadings and the evidence, Houston, for appellants. Howard & Ken- because appellee's aetion is to recover upon dall, of Houston, for appellee.

quantum meruit for work done, labor per

formed, and material furnished, and the HARPER, C. J. Appellee, Collins, sued charge permits the jury to find what was the appellant for certain money, alleging: That balance due plaintiff on the contract pleaded. he entered into a contract with F. B. King,

The only paragraph of the plaintiff's petiwho in the execution of the contract acted tion which reveals whether he sued upon personally and through his agents and archi- the contract or upon quantum meruit for tects, to install, according to plans and speci- that portion of the claim which arose before fications agreed upon, the plumbing and heat- the contract was abandoned reads: ing of a building to be constructed by said

“That there is now due and owing this plainKing. That it was provided in said contract tiff, for work performed and material furnishthat the payments should be made upon es- ed in the installation of said heating and plumbtimates of the architects from time to time ing in said building under the said contract, the as the work progressed. That after certain 300 heretofore paid to this plaintiff, and after

sum of $1,200, after deducting the sum of $1,estimates had been paid an estimate of $700 deducting from the said contract price of $2,700 was given, upon which payment was refused, the reasonable cost and expense of installing whereupon he abandoned his contract. Aft- the heating and plumbing provided for by the

terms of said contract, which said sum of $1,200 erwards finished the work by special agree- is the fair and reasonable value over and above ment with King. Appellants entered gener- the amount paid for said work and material, of al denial; denied that the architects had which the said King has availed himself, and authority to make contract; specially plead- which he has used, kept, and retained.” ed that they made no contract with appellee, [2] Of course, the allegata and probata but that the contract for the construction of must correspond, and, if the above-quoted the whole of the building was made with pleading is not sufficient to form the basis Russell & Co., as per conract attached. The of the charge and the verdict, then the cause case was submitted upon special issues, must be reversed. In the absence of an exwhich, with the answers, are as follows: ception to the petition, we think it sufficient to authorize the charge, either upon quantum , 1911. The assignment is therefore overruled. meruit or for the balance of contract price. The seventh assigns as error the refusal of Gonzales College v. McHugh, 21 Tex. 257. the court to give a requested special charge The amount due could be definitely ascertain- upon agency. The issue was sufficiently coved by reason of the fact pleaded, that the ered by the general charge given. work was to be and was paid for upon es- [5] The eighth charges that the court erred timates made by the architects as the work in giving special issue No. 1 for the reason progressed, and, there being evidence to sup- that the controverted issue in the case was port the finding, it will not be disturbed. not whether the parties were the agents of Besides, there seems to be no question of the defendants, but whether they were authorizreasonable value of the work done and ma-ed to enter into the contract; second, beterial furnished by any evidence adduced by cause undue prominence was given the quesappellant, so there could have been no other tion of agency by the court's charge. It will verdict rendered, and in that case the cause be noted in the answer to the first contention should not be reversed upon the assignments, that the second special issue submits the so they are overruled.

question of whether King authorized the The sixth is that the court erred in estab-agents to enter into the contract. We fail lishing and decreeing foreclosure of a me to see how any undue prominence was given chanic's lien on the defendant's property for the issue by the court's charge, and the apthe reason that the jury made no finding up- pellant by statements has failed to point it on that issue; therefore the court could not out to us. look to the evidence for the purpose of as- The assignments are overruled, and the certaining whether plaintiff was entitled to

cause affirmed. a lien. The first proposition is that:

a on | swers made by the jury to questions submitted FT. WORTH & D. C. RY. CO. v. MORGAN. must form the basis of the judgment. If all of

(No. 8233.) the issues necessary to support the judgment (Court of Civil Appeals of Texas. Ft. Worth.

. were not passed upon by the jury, it will be pre

June 26, 1915.) sumed on appeal that they were found by the court in such manner as to support the judg-1. CARRIERS Om 230 SHIPMENT OF LIVE ment. The application of this rule, however, STOCK-ACTIONS FOR DAMAGES-INSTRUCwill be confined to those issues which were nec- TIONS. essary to support the judgment authorized by Though in an action for damages to a the findings. If there is an independent issue shipment of cattle, the original petition alleged made by the pleadings upon which there is no that the damages were proximately caused by request for a finding, and such issue is not es- defendant's breach of a contract to ship the sential to support the judgment entered on the cattle on a particular day, so as to reach a findings made by the jury, the court is not au- particular market, the court did not err in dethorized to determine such issue and enter judg- fining negligence in its charge, where the anment awarding other and further relief to that swer alleged that the delay was not caused by authorized by the finding."

defendant's negligence, but by the burning of a

railway bridge, and a supplemental petition alThe second proposition is :

leged, in addition to what had been originally "A contractor who abandons his contract be charged, that defendant was negligent in faiicause payments are not made by the owner at ing to properly bed the car in which the shipthe time required by the contract is not entitled ment was made. to a mechanic's lien, unless the payments are [Ed. Note.–For other cases, see Carriers, made conditions precedent to the performance Cent. Dig. $$ 961, 962; Dec. Dig. Om 230.] of the work by the terms of the contract.”

2. CARRIERS 213 — SHIPMENTS-LIABILITY [3, 4] Appellee pleaded the contract be- FOR DAMAGES,

To the extent that delay in transporting a tween the parties, in which it is provided that shipment

of cattle was caused by the inability the payments for the work shall be made of the carrier's train to cross a burned bridge, from time to time, as it progressed, upon which burned without fault on the carrier's the estimates of the architects. He further part, it was not liable, and it was error to pleaded that the appellant refused to make a the cattle on a particular day, the burning of

charge that, if there was an agreement to ship $700 payment on an estimate of the architects the bridge, though unavoidable, would be no as he had agreed to do, and for that reason defense for any damage resulting from the he abandoned the contract, and there is evi- failure to comply with the contract. dence in the record to sustain the allegations, Cent. Dig. SS 920-922; Dec. Dig. Cm 213.]

[Ed. Note. For other_cases, see Carriers, and article 1985, Revised Civil Statutes, pro 3. CARRIERS 230–LIVE STOCK

Om

DELAY vides that upon appeal or writ of error an

INSTRUCTIONS. issue not submitted and not requested by a Where, in an action for delay in the transparty to the cause shall be deemed as found portation of a shipment of cattle, the evidence by the court in such manner as to support seemed to show that statements by the carthe judgment, provided there be evidence to information as to when a train to take the

rier's dispatcher were rather in the nature of sustain such a finding. The record does not cattle might be expected than a specific conreveal that appellant requested a special is-tract to ship them on any particular day, and sue to be submitted. Appellee is entitled to it appeared that plaintiff expected to, and sub

sequently did, sign a contract for the transportahis lien and its foreclosure under the plead-tion of the cattle which expressly provided that ing and evidence. Article 5621, Rev. Stat. I the cattle were not to be transported within

any specified time, nor delivered at destina- tition, which, in addition to what had been tion at any particular hour, nor in season for originally charged, alleged that appellant had any particular market, an instruction submitting the issue of a special contract to ship been guilty of negligence in failing to propthe cattle on July 21st, in time for the market erly bed the car in which the shipment was of July 22d, was at least misleading.

made. [Ed. Note. For other cases, see Carriers, Cent. Dig. SS 961, 962; Dec. Dig. 230.]

[2, 3] There was error, however, on the

part of the court in the following instruc4. CARRIERS C230-ACTIONS FOR DELAY IN tion to the jury: TRANSPORTATION – INSTRUCTIONS—MEASURE

"If you find that there was an agreement to OF DAMAGES.

In an action for delay in the transportation ship plaintiff's cattle on the 21st day of July, of a shipment of cattle, the court charged that 1914, then you are charged that, even if the the measure of damages would be the difference burning of the Pease River bridge was unavoid in the reasonable market value of the cattle able, it would be no defense in this case for at their destination in the condition that they any damage that resulted by reason of a failwould have been, had they arrived there in the ure to comply with said contract; that is, if ordinary condition and usual time, and without there was any damage." any negligent delay, and their condition at the

There was evidence tending to show that on time when they did arrive there, and that, if the market was lower on the day the cattle were the morning of July 20, 1914, without fault sold than on the day they should have arrived, on appellant's part, the bridge specified in the plaintiff would be entitled to recover such defendant's answer had burned, and that the measure of damages was the difference in the repairs on the same had not been comthe market value of the cattle at their destina- pleted so that trains could cross it until tion in the condition in which they were deliv- about 6 o'clock p. m. on the night of July ered, and in the condition in which they should 21, 1914. There was also evidence subject to have been delivered, had the shipment been with the construction that the delay in the shipout negligence, and this difference includes, not only depreciation in weight and stale appear- ment from Burk Station was caused, in part ance caused by the delays charged, but also at least, by the inability of appellant's trains any decline in the market, and the charge au- to cross the burned bridge, and to the extent thorized a double recovery for the decline in

that the delay was so caused appellant the market.

[Ed. Note: --For other cases, see Carriers, should not be charged. See Railway Co. v. Cent. Dig. $$ 961, 962; Dec. Dig. Om 230.] Noelke, 125 S. W. 969; Weesen v. Missouri

Pac. Ry, Co., 175 Mo. App. 374, 162 S. W. Appeal from Wichita County Court; Har- 304; Simkins on Contracts and Sales (30 vey Harris, Judge.

Ed.) pp. 572, 573; 4 R. C. L. 742, par. 210, Action by J. R. Morgan against the Ft. and authorities cited. Moreover, we very Worth & Denver City Railway Company. much doubt whether the evidence authorized From a judgment for plaintiff, defendant ap- in any form a submission of the issue of a peals. Reversed and remanded.

special contract to ship the cattle from Burk Carrigan, Montgomery & Britain, of Wichi- Station on July 21st in time for their arta Falls, Thompson & Barwise, of Ft. Worth, rival in Ft. Worth for the market of July and F. S. Jones, of Wichita Falls, for appel- 22d. It appears that Burk Station had catlant. Fitzgerald & Cox, of Wichita Falls, for tle pens, but was without an agent, or shipappellee.

ping or watering facilities, and the substance of the evidence tending to show the special

contract alleged substantially appears in the CONNER, C. J. The appellee recovered a judgment for damages alleged to have re- following testimony by the appellee: sulted to a car load of his cattle shipped of July 21, 1914, and called up the Denver for

"I was here in Wichita Falls on the morning from Burk Station, in Wichita county, to Ft. a car to be placed at Burk Station for cattle Worth. As alleged in his original petition, to be shipped to Ft. Worth, and they advised the damages were proximately caused by a me to call the dispatcher's office, which I did, breach of a contract on appellant's part to for certain whether he would be able to have

and the dispatcher said that he did not know ship the cattle from Burk Station on the 21st a train by there that day or not, on account day of July, so as to reach Ft. Worth in time of burn-out on Pease River bridge, but would for the market of July 22d. The defendant know later on in the day. In order for me answered, among other things, that the de-to get my cattle together, I had to leave Wichi

ta lay, which was at Burk Station before the Fowlkes Station, and a man met me there with transportation began, was not caused by its a horse, and we got the cattle and started to negligence, but by the burning of a bridge on the Burk pens with them. We got as far as a line of railway between the shipping points cattle, and went there and phoned, and called

Rurnett's ranch, and I left my man with the named.

the dispatcher, and he said they had already [1] The objection to the court's definition placed the car there and would be able to move of negligence, on the ground that the plain-my.cattle that evening; that there would be a tiff's cause of action was based alone on a o'clock, and I put the cattle in the pens and

train along there that evening about 2 or 3 breach of the contract and not upon a tort, waited there for the train. I penned my cattle is not maintainable, for the reason that the between 10 and 11 o'clock that morning. My issue of negligence was not only raised by object in calling up the dispatcher after I had

gathered my cattle was I did not want to pen the defendant's answer, but also expressly my cattle until I found out for certain whether presented in the plaintiff's supplemental pe- he could more them that day and he had told

me that he would know later in the day, and There was evidence tending to show that, there was nothing else to do but to call him up in addition to the stale and injured condition and find out whether there would be a train.

* My cattle remained in the pens there of the cattle caused by the delay at Burk at Burk station until about 2 o'clock that night Station, there was a decline in the market before a train came along that could have moved between the 22d and 230 days of July, on them. This train that came along did not take account of which the plaintiff claimed dam

, the train crew dropped off of the engine as the ages. Plaintiff's measure of damages was engine came to the pens, and ran over to the the difference in the market value of his catpens and shone his lantern over to top of the tle at destination in the condition in which pen, and jumped off and ran back and caught the caboose by the time it came by, and they they were delivered and in the condition in pulled out. I was near the pens, but I was which they should have been delivered had not at the pens, where my cattle were.”

the shipment been made without negligence. These statements by appellant's dispatcher This difference includes, not only depreciaseem to be, in the nature of mere informa- tion in weight and stale appearance caused tion, in answer to appellee's inquiries as to by the delays charged, but also any decline when a train to take the cattle might be in the market, and the charge quoted is subexpected at Burk, rather than as amounting ject to the objection that it authorizes a douto a specific contract to ship them at any ble recovery, in that, to full damages authorparticular day. In addition to this, appel- ized by the first sentence of the charge, the lee further testified that he accompanied the second sentence again authorizes the imposishipment; that he got away from Burk Station of damages because of a decline in the tion with his cattle about 6 o'clock p. m. on market. T. & P. Ry. Co. v. Tomlinson, 157 July 22d; that he had a fairly good run to S. W. 279; Railway Co. v. Lane, 49 Tex. Civ. Ft. Worth, and that his cattle were not dam-App. 541, 110 S. W. 530. aged in transit. He further testified that: We think it unlikely that other questions

“At the time when I called up the dispatcher presented will arise on another trial. It is to see about getting a car to ship my cattle, I accordingly ordered that, for the errors notknew that I would be expected to sign a con- ed, the judgment be reversed, and the cause tract, and I expected to sign one; and the contract I signed was what I had been accustomed renianded. to doing under the same conditions. Wichita Falls is a terminal, and I signed this contract at the terminal. I made no objection MISSOURI, K. & T. RY. CO. OF TEXAS v. to signing the contract here."

A. E. WANT & CO. (No. 8234.) Shipping contracts executed under similar (Court of Civil Appeals of Texas. Ft. Worth. circunstances have often been held to super- June 26, 1915. Rehearing Denied sede previous verbal agreements relating to

Oct. 15, 1915.) the same subject. See H. & T. C. Ry. Co. v. 1. CARRIERS C32—CHARGES-REBATES. Smith, 44 Tex. Civ. App. 299, 97 S. W. 836;

An agreement of the agent of a railway S. A. & A. P. Ry. Co. v. Barnett, 27 Tex. Civ. upon discovery that the goods are in a defec

company transporting goods for the plaintiff, App. 498, 66 S. W. 474; Chicago, R. I. & T. tive condition on delivery, to reimburse the Ry. Co. v. Halsell, 36 Tex. Civ. App. 522, 81 plaintiff for damages suffered by reason of de S. W. 1243. The contract referred to by the terioration of goods, is not an agreement for

a rebate, sufficient to make it discriminatory witness as the one signed by him at Wichita within the interstate commerce law, nor does Halls was pleaded by the defendant and read the fact that proof of the amount of damage in evidence, and contained an express provi- is to be determined by plaintiff's agents alter

the situation in that respect. sion that the live stock covered by it “is not

[Ed. Note. For other cases, see Carriers, to be transported within any specified time, Cent. Dig. $8.83-85; Dec. Dig.' Om 32.] nor delivered at destination at any particular 2. EVIDENCE 130— ADMISSIBILITY – LEThour, nor in season for any particular mar- TERS. ket.” So that, on the whole, as it seems to

It is not error to exclude from the evidence us, it was misleading, to say the least of it, agent in regard to plaintiff's claim for damages,

a letter written to defendant by defendant's to undertake to submit the issue of a spe- for the letter is res inter alios acta, particucial contract as alleged by the plaintiff in his larly where the letter itself does not rebut the original petition.

evidence to which it is directed. [4] We are of opinion the court also erred, Cent. Dig. & 403; Dec. Dig. Om130.]

TEd. Note.-For other cases, see Evidence, as assigned, in his charge on the measure of 3. CARRIERS em 69 – INJURY TO Goods —

GOODS damages, which reads as follows:

AGENTS-IMPLIED AUTHORITY. "If you find for the plaintiff in this case, the Evidence, in an action for damages for measure of damages (if any) would be the dif- deterioration of goods shipped, held to warrant ference in the reasonable market value of his subinission of the issue as to whether defendcattle at Ft. Worth, Tex., in the condition that ant's agent, who assumed to compromise a said cattle would have been had they arrived claim, had been held out to shippers and conthere in the ordinary condition and usual time, signees as having authority to do so. and without any negligent delay, and their con- [Ed. Note.For other cases, see Carriers, dition at the time when they did arrive there. Cent. Dig. $$ 217–219, 222, 228, 230, 232–239; And if the market was lower on the day his Dec. Dig. Cm 69.] cattle were sold on said market than the same cattle were on the market of July 22d, he would

Appeal from Tarrant County Court; Leon be entitled to recover said difference."

B. Fant, Judge.

Action by A. E. Want & Co. against the, ter to him, and requested that some one from Missouri, Kansas & Texas Railway Company defendant's office come down and examine of Texas. From a judgment for the plaintiff, the potatoes, and advise plaintiff what the defendant appeals. Affirmed.

should be done. That W. N. Baker, defend

ant's claim clerk or investigator under C. Thompson & Barwise and George Thomp- D. Rowe, local agent, in response to Mr. son, Jr., all of Ft. Worth, for appellant. Jackson's request came to where the car was Baskin, Dodge & Eastus, of Ft. Worth, for and saw the potatoes, and instructed Jackson appellee.

"to go ahead and run this car of potatoes

and let him know what the damage was, and BUCK, J. From a judgment in the sum he would protect us (plaintiff) on it.” It was of $155.87 in favor of plaintiff, A. E. Want shown that Baker told Jackson “to handle & Co., the defendant railway company ap- the potatoes for the account of the M. K. &

T. of Texas.” peals.

Baker testified that he inPlaintiff sued defendant, alleging: That structed Jackson to go ahead and handle the during the month of January, 1912, there potatoes on account of the defendant, but was consigned to plaintiff at Ft. Worth, Tex., that he did not promise that the railway by D. E. Ryan Company of Minneapolis, company would pay for any loss sustained, Minn., a certain car of potatoes. That up- but merely that “we would give it prompt on its arrival plaintiff became aware that the handling and it would be handled and setpotatoes therein, or a portion thereof, were tled on its merits.” frozen and unmarketable, and refused to

The evidence showed that both Rowe and accept the shipment. That, in order to save Baker had many times prior thereto made the defendant the trouble and expense of settlements for damages claimed to shiphandling said damaged potatoes, the defendments, without referring the claims to headant and its agents agreed with plaintiff that, quarters at Dallas; but both Messrs. Rowe if it would receive said shipment, the defend- and Baker testified that such a course was ant company would pay all loss and damage permitted under the rules of the defendant on account of the condition of the potatoes, company only when the amount of the claim and directed the plaintiff to unload and as- was less than $100; that larger claims had to sort the same, and promised when this was be referred to the Dallas office. In this indone, and the extent of the loss ascertained, stance, the evidence shows that the claim was the defendant company would pay to plain- referred to the Dallas office by Baker, but tiff the amount thereof. That said shipment for some unexplained reason was not paid, was made with bill of lading attached, all though nearly three years had elapsed beof which was known to defendant and its tween the origin of the claim and the judg. agents, and that the contract contemplated ment in the trial court. that plaintiff should pay the attached draft

The first assignment is directed to the and receive the potatoes, and that it was in- failure of the trial court to give defendant's duced to so accept and pay for said shipment special requested peremptory instruction, , by the promises made by defendant. It was which appellant urges was error, for the alleged that the loss amounted to $155.87. following reasons set forth in its statement

Defendant denied: (1) That any such under said assignment: promise was made by it as claimed by plain of the evidence in the case, showing that con

"The uncontradicted evidence, and the weight tiff ; (2) that if it was made, the agent who tracts such as the one alleged by the plaintiff made it had authority to bind the defendant, were not made by the various railroads in the or (3) that the defendant had held out such city of Ft. Worth at that time, and further agent as having such authority; (4) that showing that there was no general custom or though the promise was made, and though in Ft. Worth, in existence at the time, whereby

practice on the part of the railway companies the agent had the authority to make it, or they would make such contracts or extend such had been held out by defendant as having privileges to shippers in Ft. Worth, or to par

ties to be notified of the arrival of shipments in such authority, yet the promise and agree the city of Ft. Worth, as was alleged by the ment was in violation of the federal statutes plaintiff in its petition, and these facts being of February 19, 1903, and amended in 1906, true, the alleged contract upon which plaintiff prohibiting concessions, rebates, and discrim- bases its suit was and is wholly discriminatory inations as to freight rates and charges on Want & Co. which was not conferred upon other

and conferred a privilege upon the said A. E. interstate shipments, and therefore was not shippers and parties to be notified of the arenforceable.

rival of shipments in the city of Ft. Worth, and The evidence showed: That, upon the ar- ing upon this defendant.

was therefore unlawful, invalid, and not bindrival of the shipment at Ft. Worth, the car The plaintiff having sued upon a breach was placed on plaintiff's house track, and of the alleged contract, and nowhere in its petithat F. A. Jackson, agent and receiving was guilty of negligence in the handling of said

tion alleging that the said railway company clerk and warehouse foreman for plaintiff, shipment, but wholly relied upon the breach looked at the potatoes and discovered their of said contract as alleged, the defendant, unfrosted and damaged condition, and called der the evidence and the facts adduced during

the trial of the case, is clearly entitled to a up the defendant's local freight office, and, peremptory instruction and the submission to

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