52 Neb. 140 | Neb. | 1897
This was an action by Denman against the railroad company to recover for loss suffered by reason of delay in the transportation of certain cattle for the plaintiff. The suit was originally brought in the county court, apparently against the Burlington & Missouri River Railroad in Nebraska. An amended petition was filed against
The petition alleges that on the 31st day of March, 1888, the plaintiff made a contract in writing with the defendant wherein the defendant agreed to transport 100 cattle for plaintiff from South Omaha to Chicago; that the defendant received the cattle on that date for transportation; that the usual, ordinary, and reasonable time required for transportation was from twenty-four to thirty-six hours; that the defendant, in violation of its contract, ‘“unreasonably and negligently delayed the transportation of said cattle * * * and did not deliver said cattle at Chicago until the 4th day of April, 1888, and more than forty-eight hours after the time when said cattle should have been delivered at Chicago in the usual and customary course of transportation.” This is followed by allegations of special damages. The written contract referred to is attached to and made a part of the petition and contains the following: “And in con
It is. contended, however, that, viewed as an action ex contractu, the contract alleged does not specify any time for performance, and the petition therefore states no cause of action. The law of the state is a part of every contract, and a contract for the transportation of chattels, especially live stock, implies an agreement to transport within a reasonable time. A citation of cases would be futile. (See, however, those cited in 2 Am. & Eng.
Finally, it is urged that the action is on a liability created by statute and must, therefore, be brought within fonr years. The statute invoked is chapter 16, section 111, Compiled Statutes, providing that “any railroad company receiving freight for transportation shall be entitled to the same rights and be subject to the same liabilities as common carriers.” We take it that section 11 of the Code, fixing the period of limitations for actions “upon a liability created by statute other than a forfeiture or a penalty,” does not apply to every case where a party invokes a statutory provision to establish his right. The statute in question creates no specific liability. It merely déclares the common law and fixes the status of a railroad as a common carrier. If it provided a special remedy, non-existent in the absence of statute, section 11 of the Code might apply.
Reversed and remanded.