H. & T. C. R'y Co. v. Poole

63 Tex. 246 | Tex. | 1885

Watts, J. Com. App.

When this case was before the court on the former appeal, after full investigation and mature consideration it was distinctly held that notice to the station agent at Marlin, the point to which the merchandise was consigned, of the stoppage in transitu, was notice to the railroad company (58 Tex., 138). No good reason has been perceived to doubt the correctness of that conclusion, and it will no longer be considered an open question.

Hnder the facts and circumstances of the case, the testimony of Aycock, as to the statements made by the defendant J. L. Scott, on the former trial, was admissible as against Scott. But there was nothing in the circumstances of the case which would authorize its admission against the railroad company.

The general rule is that, where evidence is admissible for any purpose, it is incumbent upon those against whom it should not operate to limit its effect by asking appropriate instructions of the court.

Here the company, as appears from the bill of exceptions, asked the court, in the admission of the evidence, to limit its operation to defendant Scott. This the court refused to do, but admitted the eyidence without qualification. This evidence as admitted bore directly upon one of the contested issues between the company and appellee. One of the important issues between these parties was as to whether the name of La Prelie & Bro. had been erased from the cases, and that of J. L. Scott & Co. placed upon the same. And as the attention of the court had been called to the fact that this evidence should be limited to the defendant Scott, we are of the opinion that it was error to submit that issue without the qualification.

Again, the right to stop the merchandise in transit depended upon the fact that appellee ascertained the insolvency of La Prelie & Bro. after the sale and shipment. If the fact of the insolvency had been known to appellee before he made the sale to La Prelie & Bro., then he would not have the right to stop the merchandise in transit. Wait’s Actions and Defenses, vol. 5, p. 611, etc. And to show this fact the burden was upon appellee. The only evidence adduced to that issue was his own, and the statement of the agent or clerk, to the effect that after the merchandise was shipped appellee learned that La Prelie & Bro. had given a deed of trust upon their property. The facts were known to appellee, and it does seem that something more certain and direct ought to be exacted of him than the very meager statement that after the shipment he learned of the deed of trust.

We conclude that the judgment ought to be reversed and the cause remanded.

Reversed and Remanded.

[Opinion adopted February 6, 1885.]