62 Mo. App. 252 | Mo. Ct. App. | 1895
This is an action to recover damages arising out of the breach of a verbal contract.
The petition alleged that on the tenth day of February, 1894, the plaintiff entered into a verbal contract with the defendant, whereby the defendant bound itself to furnish the necessary cars and to receive and ship eighty head of fat cattle belonging to the plaintiff, at Odessa, to the stock yards at Kansas City, in this state, on the twelfth day of February, 1894, and that, in compliance with said contract, the defendant brought to said station at Odessa, and had then and there, four stock cars, for the shipment of the plaintiff’s said cattle, and the plaintiff drove his said cattle to said station, and had them there during the entire day, ready for shipment, but defendant, in violation of its said contract, refused to receive and ship said cattle on said twelfth day of February, 1894, and did not receive and ship said cattle until February 13,1894; that, had defendant received and shipped said cattle as it had bound itself to do by said contract, said cattle would have reached the Kansas City stock yards, in the regular course of transportation, on the morning of February 13, 1894; but in consequence of defendant’s failure to comply with its contract, the said cattle did not arrive at Kansas City stock yards until February 14, 1894; that said cattle, on the thirteenth day of February,
The answer was a general denial, coupled with, first, a special defense, that: “On the twelfth day of February, 1894, the said plaintiff attempted to enter into an agreement with the said defendant for the shipment and transportation of sixty head of cattle from the city of Odessa to said city of Kansas City; that the said defendant, on the twelfth day of February, 1894, at said city of Odessa, refused to enter into such an agreement as aforesaid, to wit, to ship and transport the said sixty head of cattle from the said city of Odessa to the said city of Kansas City, on the said twelfth day. of February, 1894, refused to receive said cattle for shipment and transportation on said date for the reason that the said cattle could not be shipped nor transported as aforesaid on the said twelfth day of February, 1894, in consequence of a sudden and extreme change in the weather, and the falling of a deep and heavy snow, and a severe, extreme and unforeseen storm arising, whereby the railroad freight lines and -system of said defendant for the reception, shipment and transportation of the said live stock were blockaded •and incapacitated from performing their-usual, customary -and scheduled traffic on the said twelfth day of February, 1894, and the defendant further states that by reason and inconsequence of the sudden and extreme change in the weather, and the falling of a deep and heavy snow, and a severe and extreme storm arising, it was impossible as aforesaid, to receive, ship, or •transport said live stock on said date; and impossible to move and transport the cars and trains of the said defendant on the said twelfth day of February, 1894
“It is further mutually agreed that, should loss or damage of any kind occur to the property specified in this contract, while such property is in the possession of the first party (said defendant), the second party (said plaintiff) shall, in five days after sueh loss or damage has accrued, give notice in writing of his claim to the first party (said defendant).”
The court, on the motion of plaintiff, struck out all of the defendant’s answer, except the general denial. There was a trial and judgment for plaintiff, and from •the latter the defendant appealed.
No error is perceived in the action of the court in striking out the special defenses pleaded in the answer. The first of those neither expressly admitted nor denied the making of the verbal contract alleged in the petition. It was uncandid an4 evasive, It, in legal
In Davis v. Smith, 15 Mo. 467, it was declared: “The distinction between a duty created by law and one created by the party is an established principle of our law. "When the law creates a duty and the party is disabled to perform it, without any default by him, and he has no remedy over, the law will' excuse him. But when a party, by his own contract, creates a charge or duty upon himself, he is bound to make it good, if he may, notwithstanding any account by inevitable necessity, because he might have provided against it by his contract.” This principle has been recognized and applied by us. White v. Railroad, 19 Mo. App. 400; Fulkerson v. Eads, 19 Mo. App. 620; Hall v. School District, 24 Mo. App. 213.
Angelí on Carriers, section 294, in speaking of contracts, express as to a time prescribed in which a thing is to be done, says: “But the principle of law in respect to the obligations of a carrier to deliver goods in a reasonable time, depending upon circumstances, though they may apply, as in the foregoing cases, to implied contracts, will not apply to express contracts to deliver in a prescribed time. In the latter ease, no temporary obstruction or even absolute impossibility of complying with the engagement, will be a defense to an action for failure to perform the'contract.” And this paragraph
In Harmony v. Bingham, 2 Kernan (N. Y.) 99, it was held that when a party agreed to transport goods from one point to another within twenty-six days and failed to do so in that time, “the fact that a public canal, on which the goods were intended to be transported a part of the distance, was rendered impassable by an unusual freshet and that this occasioned the detention, was not a legal excuse therefor.” This statement of the law was quoted with approval in Harrison v. Railroad, supra.
From these principles and authorities, it is plain that the facts specially pleaded in the first part of the defendant’s answer constitute no defense to the action.
The second and third special defenses of the answer show that the written contract pleaded was entered into after the alleged breach of the verbal contract, occasioning the damages for which plaintiff sues, had occurred, and it is not alleged that there is any provision of said written contract which releases the defendant from its liability arising from the breach of the verbal contract, or anything in the former that indicates such to have been the intention. Nor is any provision pleaded showing that the plaintiff waived any right which had already accrued, or that the written contract merged the defendant’s liability for the breach of the previous verbal contract. Harrison v. Railroad, supra; Railroad v. Perkins, 17 Mich. 296; Harkness v. Briscoe, 47 Mo. App. 196; McCullough v. Railroad, 34 Mo. App. 23. Nor can we discover from any provision of the written contract pleaded, that a performance of its conditions by the defendant in any way excused the nonperformance of the previous verbal contract. The special defenses of the answer, we think, were properly stricken out.
The defendant, as a further ground of demurrer, contends that it was beyond the power of the agent at Rates City to. make the verbal contract for furnishing
It must be conceded that the defendant’s station agent at Bates City had authority to bind the defendant to furnish cars to plaintiff at Odessa station. The defendant’s train master, who undoubtedly was its alter ego, in respect to the control of all its trains and cars, that were, from time to time, required to move any live stock or other freight offered for shipment over its line at any station between Kansas City and Slater, fully acknowledged the authority of the station agent at Bates City to contract for furnishing cars at the neighboring station of Odessa. The agent at Bates City testified that he made a requisition on the train-master to furnish the cars at the time and place he had promised the plaintiff, and it is not disputed that the same was so furnished by the latter in compliance with the requisition of the former.
Assuming, as we must, that the Bates City agent had the power to contract for furnishing the plaintiff the required number of cars for the shipment of his cattle at Odessa, the question is, did he have further power to contract for the receipt and shipment of the
It is difficult to see how the business of a railroad could be successfully conducted, in regard to live stock, unless the owners have a right to rely on the agreements of station agents, both as to the furnishing of cars and the time for the receipt and shipment of the stock. The fact that an agent possesses the former, but not the latter, of these powers, can not affect a shipper, unless notice is conveyed to him in such a manner as authorizes the inference that he was apprised of the restrictions. We must think that the contract proved in this case was clearly within the scope of the agent’s apparent authority and that it was sufficient to bind the defendant. If his authority was restricted by the defendant, alone to the furnishing of cars to the shippers, there is no fact shown to justify the inference that plaintiff had knowledge of the restriction.
The demurrer to the evidence was properly overruled.
The ground covered by the ninth and eleventh instructions, which were refused for defendant, is substantially covered by the first given for plaintiff and the second for defendant.
No error is perceived in the action of the court in refusing defendant’s sixth, seventh and eighth instructions. These instructions are all based upon the erroneous notion that the “act of Grod” preventing a compliance with the contract to receive and ship plaintiff’s cattle, constituted a valid excuse therefor. If the action had been based upon the carrier’s common law liability, instead of an express contract, the instructions
We have examined the other instructions asked by defendant, but find no error in the action of the court in refusing them. The case seems to have been tried in conformity to correct principles of law, so that we are not at liberty to disturb the judgment, which will be accordingly affirmed.