49 Colo. 475 | Colo. | 1911
delivered the opinion of the court:
To defendant railway company, a common carrier, plaintiff, delivered at Loveland, beef cattle to be
The replication admits the esecution of the special contract, but says that it is void for want of consideration in that the freight rate charged plaintiff was the regular rate charged by the carrier for the shipment of live stock, and not a reduced rate at all, that it was not given at his request, and that he had no opportunity or choice of shipping his cattle over the defendant’s road under any other contract than that set out in the answer. The replication further alleges that the contract is against public policy, and void, in that it purports to relieve the defendant carrier from the consequences of its own negligence in failing to furnish suitable cars to transport the cattle, and deliver them without unreasonable delay. It admits that suit was not brought within the period of ninety days from the date of the injury, but, as a reason therefor, alleges that defendant acknowledged that there was justice in plaintiff’s claim, and led him to believe it would be settled without suit, and although he took a much longer time than ninety days for the bringing of the action, defendant took more than this time for the purpose of investigating the claim for damages before refusing to pay it, and verbally agreed with him that if the payment of the claim was finally refused, it would waive compliance with the ninety-day limit. Defendant’s motion for judgment on the pleadings was sustained, the action was dismissed, and plaintiff is here with his writ of error.
We notice several minor assignments in view of another trial. Defendant says that since plaintiff by his replication admits the making of the special
Defendant says that even though the clauses of the special contract already considered, are void, nevertheless the time limitation for bringing of the action is valid, and the action is barred, in the absence of a subsequent agreement between the parties waiving the same, or of conduct upon the part of the defendant by which the same has been waived, or defendant estopped to take advantage of it. "We are of opinion that a reasonable limitation, such as this, is valid if there was a valid consideration .for it. In the replication sufficient facts are alleged to show that defendant either waived this clause or is now estopped. The conduct of defendant, which is there set forth, is sufficient to constitute either a waiver or an estoppel. The principal objection urged against this plea is that there is no 'distinct allegation that the alleged conduct of defendant relied upon as a waiver, or estoppel, took place before the expiration of the time limit; and that, if it took place afterwards, there could be no waiver or estoppel. We do not decide this particular point, for we are of opinion that a fair construction of the replication is that the conduct occurred before such expiration, and defendants admit that a waiver occurring then is good as a plea. At least the replication, in the absence of a motion for a more specific statement, is good as against the general objection now made to it.
Another contention of defendant is that there were material allegations of the first defense in the
Department 3.
Mr. Justice White and Mr. Justice Bailey concur.