4. APPEAL AND ERROR 934-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 defendant did not request the submission of such an issue, an assignment that the court erred in decreeing the foreclosure of a mechanic's lien for the reason the jury made no finding on that issue would be overruled under Rev. St. 1911, art. 1985, providing that upon appeal or writ of error an issue not submitted and not requested by a party to the cause shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding.

The seventh assigns as error the refusal of the court to give a requested special charge upon agency. The issue was sufficiently covered by the general charge given.

to authorize the charge, either upon quantum | 1911. The assignment is therefore overruled. meruit or for the balance of contract price. Gonzales College v. McHugh, 21 Tex. 257. The amount due could be definitely ascertained by reason of the fact pleaded, that the work was to be and was paid for upon estimates made by the architects as the work progressed, and, there being evidence to support the finding, it will not be disturbed. Besides, there seems to be no question of the reasonable value of the work done and material furnished by any evidence adduced by appellant, so there could have been no other verdict rendered, and in that case the cause should not be reversed upon the assignments, so they are overruled.

[5] The eighth charges that the court erred in giving special issue No. 1 for the reason that the controverted issue in the case was not whether the parties were the agents of defendants, but whether they were authorized to enter into the contract; second, because undue prominence was given the question of agency by the court's charge. It will be noted in the answer to the first contention that the second special issue submits the 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 ascertaining whether plaintiff was entitled to a lien.

The first proposition is that:

The assignments are overruled, and the cause affirmed.

1. CARRIERS

(No. 8233.)

June 26, 1915.)

mm 230 SHIPMENT OF LIVE STOCK-ACTIONS FOR DAMAGES-INSTRUC

TIONS.

"If a case is submitted on special issues, an- FT. WORTH & D. C. RY. CO. v. MORGAN. swers made by the jury to questions submitted must form the basis of the judgment. If all of 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 presumed on appeal that they were found by the court in such manner as to support the judgment. The application of this rule, however, will be confined to those issues which were necessary to support the judgment authorized by the findings. If there is an independent issue made by the pleadings upon which there is no request for a finding, and such issue is not essential to support the judgment entered on the findings made by the jury, the court is not authorized to determine such issue and enter judgment awarding other and further relief to that authorized by the finding."

The second proposition is:

"A contractor who abandons his contract because payments are not made by the owner at the time required by the contract is not entitled to a mechanic's lien, unless the payments are made conditions precedent to the performance of the work by the terms of the contract."

Though in an action for damages to a shipment of cattle, the original petition alleged that the damages were proximately caused by defendant's breach of a contract to ship the cattle on a particular day, so as to reach a particular market, the court did not err in defining negligence in its charge, where the answer alleged that the delay was not caused by defendant's negligence, but by the burning of a railway bridge, and a supplemental petition alleged, in addition to what had been originally charged, that defendant was negligent in failing to properly bed the car in which the shipment was made.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. 230.] 2. CARRIERS 213- SHIPMENTS-LIABILITY FOR DAMAGES.

To the extent that delay in transporting a shipment of cattle was caused by the inability of the carrier's train to cross a burned bridge, which burned without fault on the carrier's part, it was not liable, and it was error to charge that, if there was an agreement to ship the cattle on a particular day, the burning of the bridge, though unavoidable, would be no defense for any damage resulting from the failure to comply with the contract. Cent. Dig. §§ 920-922; Dec. Dig. 213.] [Ed. Note.-For other cases, see Carriers, CARRIERS 230-LIVE STOCK DELAY

[3, 4] Appellee pleaded the contract between the parties, in which it is provided that the payments for the work shall be made from time to time, as it progressed, upon the estimates of the architects. He further pleaded that the appellant refused to make a $700 payment on an estimate of the architects as he had agreed to do, and for that reason he abandoned the contract, and there is evidence in the record to sustain the allegations, and article 1985, Revised Civil Statutes, pro-3. vides that upon appeal or writ of error an issue not submitted and not requested by a party to the cause shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding. The record does not reveal that appellant requested a special issue to be submitted. Appellee is entitled to his lien and its foreclosure under the pleading and evidence. Article 5621, Rev. Stat.

INSTRUCTIONS.

-

Where, in an action for delay in the transportation of a shipment of cattle, the evidence rier's dispatcher were rather in the nature of seemed to show that statements by the carinformation as to when a train to take the cattle might be expected than a specific contract to ship them on any particular day, and it appeared that plaintiff expected to, and subsequently did, sign a contract for the transportation of the cattle which expressly provided that the cattle were not to be transported within

any specified time, nor delivered at destination at any particular hour, nor in season for any particular market, an instruction submitting the issue of a special contract to ship the cattle on July 21st, in time for the market of July 22d, was at least misleading.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. 230.] 4. CARRIERS

230-ACTIONS FOR DELAY IN TRANSPORTATION - INSTRUCTIONS-MEASURE OF DAMAGES.

tition, which, in addition to what had been originally charged, alleged that appellant had been guilty of negligence in failing to properly bed the car in which the shipment was made.

[2, 3] There was error, however, on the part of the court in the following instruction to the jury:

"If you find that there was an agreement to 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 unavoidin 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 there 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 time when they did arrive there, and that, if the market was lower on the day the cattle were sold than on the day they should have arrived, plaintiff would be entitled to recover such difference. Held, that this was erroneous, as the measure of damages was the difference in the market value of the cattle at their destination in the condition in which they were delivered, and in the condition in which they should have been delivered, had the shipment been with out negligence, and this difference includes, not only depreciation in weight and stale appearance caused by the delays charged, but also any decline in the market, and the charge authorized a double recovery for the decline in the market.

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

Appeal from Wichita County Court; Harvey Harris, Judge.

Action by J. R. Morgan against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Carrigan, Montgomery & Britain, of Wichita Falls, Thompson & Barwise, of Ft. Worth, and F. S. Jones, of Wichita Falls, for appellant. Fitzgerald & Cox, of Wichita Falls, for appellee.

There was evidence tending to show that on the morning of July 20, 1914, without fault on appellant's part, the bridge specified in the defendant's answer had burned, and that the repairs on the same had not been completed so that trains could cross it until about 6 o'clock p. m. on the night of July 21, 1914. There was also evidence subject to the construction that the delay in the shipment from Burk Station was caused, in part at least, by the inability of appellant's trains to cross the burned bridge, and to the extent that the delay was SO caused appellant should not be charged. See Railway Co. v. Noelke, 125 S. W. 969; Weesen v. Missouri Pac. Ry. Co., 175 Mo. App. 374, 162 S. W. 304; Simkins on Contracts and Sales (3d Ed.) pp. 572, 573; 4 R. C. L. 742, par. 210, and authorities cited. Moreover, we very much doubt whether the evidence authorized in any form a submission of the issue of a special contract to ship the cattle from Burk Station on July 21st in time for their arrival in Ft. Worth for the market of July 22d. It appears that Burk Station had cattle pens, but was without an agent, or shipping or watering facilities, and the substance of the evidence tending to show the special CONNER, C. J. The appellee recovered a contract alleged substantially appears in the 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 Wichide-ta Falls on the Electra Local, and went to 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 Burnett's ranch, and I left my man with the 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 train along there that evening about 2 or 3 tiff's cause of action was based alone on ao'clock, and I put the cattle in the pens and 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 the defendant's answer, but also expressly my cattle until I found out for certain whether gathered my cattle was I did not want to pen presented in the plaintiff's supplemental pe- he could move them that day and he had told

named.

Action by A. E. Want & Co. against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for the plaintiff, the defendant appeals. Affirmed.

Thompson & Barwise and George Thompson, Jr., all of Ft. Worth, for appellant. Baskin, Dodge & Eastus, of Ft. Worth, for appellee.

BUCK, J. From a judgment in the sum of $155.87 in favor of plaintiff, A. E. Want & Co., the defendant railway company appeals.

ter to him, and requested that some one from
defendant's office come down and examine
the
the potatoes, and advise plaintiff what
should be done. That W. N. Baker, defend-
ant's claim clerk or investigator under C.
D. Rowe, local agent, in response to Mr.
Jackson's request came to where the car was
and saw the potatoes, and instructed Jackson
"to go ahead and run this car of potatoes
and let him know what the damage was, and
he would protect us (plaintiff) on it." It was
shown that Baker told Jackson "to handle
the potatoes for the account of the M. K. &
Baker testified that he in-
structed Jackson to go ahead and handle the
potatoes on account of the defendant, but
that he did not promise that the railway
company would pay for any loss sustained,
but merely that "we would give it prompt
handling and it would be handled and set-
tled on its merits."

T. of Texas."

quarters at Dallas; but both Messrs. Rowe and Baker testified that such a course was permitted under the rules of the defendant company only when the amount of the claim was less than $100; that larger claims had to be referred to the Dallas office. In this instance, the evidence shows that the claim was referred to the Dallas office by Baker, but for some unexplained reason was not paid, though nearly three years had elapsed between the origin of the claim and the judg ment in the trial court.

Plaintiff sued defendant, alleging: That during the month of January, 1912, there was consigned to plaintiff at Ft. Worth, Tex., by D. E. Ryan Company of Minneapolis, Minn., a certain car of potatoes. That upon its arrival plaintiff became aware that the potatoes therein, or a portion thereof, were 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 defend-ments, without referring the claims to headant and its agents agreed with plaintiff that, if it would receive said shipment, the defendant company would pay all loss and damage on account of the condition of the potatoes, and directed the plaintiff to unload and assort the same, and promised when this was done, and the extent of the loss ascertained, the defendant company would pay to plaintiff the amount thereof. That said shipment was made with bill of lading attached, all of which was known to defendant and its agents, and that the contract contemplated that plaintiff should pay the attached draft and receive the potatoes, and that it was induced to so accept and pay for said shipment by the promises made by defendant. It was alleged that the loss amounted to $155.87. Defendant denied: (1) That any such promise was made by it as claimed by plaintiff; (2) that if it was made, the agent who made it had authority to bind the defendant, or (3) that the defendant had held out such agent as having such authority; (4) that though the promise was made, and though the agent had the authority to make it, or had been held out by defendant as having such authority, yet the promise and agreement was in violation of the federal statutes of February 19, 1903, and amended in 1906, prohibiting concessions, rebates, and discriminations as to freight rates and charges on interstate shipments, and therefore was not enforceable.

The evidence showed: That, upon the arrival of the shipment at Ft. Worth, the car was placed on plaintiff's house track, and that F. A. Jackson, agent and receiving clerk and warehouse foreman for plaintiff, looked at the potatoes and discovered their frosted and damaged condition, and called up the defendant's local freight office, and, asking for the claim clerk, reported the mat

The first assignment is directed to the failure of the trial court to give defendant's special requested peremptory instruction, which appellant urges was error, for the following reasons set forth in its statement under said assignment:

"The uncontradicted evidence, and the weight tracts such as the one alleged by the plaintiff of the evidence in the case, showing that conwere not made by the various railroads in the city of Ft. Worth at that time, and further showing that there was no general custom or practice on the part of the railway companies in Ft. Worth, in existence at the time, whereby they would make such contracts or extend such privileges to shippers in Ft. Worth, or to parties to be notified of the arrival of shipments in the city of Ft. Worth, as was alleged by the plaintiff in its petition, and these facts being true, the alleged contract upon which plaintiff bases its suit was and is wholly discriminatory and conferred a privilege upon the said A. E. Want & Co. which was not conferred upon other shippers and parties to be notified of the arrival of shipments in the city of Ft. Worth, and ing upon this defendant. was therefore unlawful, invalid, and not bind

"The plaintiff having sued upon a breach of the alleged contract, and nowhere in its petiwas guilty of negligence in the handling of said tion alleging that the said railway company shipment, but wholly relied upon the breach of said contract as alleged, the defendant, under the evidence and the facts adduced during the trial of the case, is clearly entitled to a peremptory instruction and the submission to the jury of its said special charge, No. 1."