96 Kan. 8 | Kan. | 1915
The opinion of the court was delivered by
This action was before this court on a previous appeal. (Ray v. Railway Co., 90 Kan. 244, 183 Pac. 847.) Two actions were originally brought in justice court by plaintiffs to recover damages on two shipments of live stock from Electra, Tex., to St. Louis, Mo. The actions were consolidated in an appeal to the district court, where the plaintiffs were successful, and on an appeal to this court the judgment of that court was reversed and a new trial ordered. On the second trial the plaintiffs again prevailed, and the railway company appeals.
It appears that on or about October 22, 1910, plaintiffs shipped seven cars of cattle from Electra, Tex., to National Stock Yards at East St. Louis, Ill., or St. Louis, Mo., as the destination is spoken of. Four of the cars, containing one hundred two head of cattle, weré consigned to one commission firm, and the other three cars, containing seventy-four head of
The principal complaint of the defendant is that a recovery was permitted although the shipping contracts expressly provided that any action for damages would be waived unless it was begun within ninety-one days after the injury was sustained; that the alleged damage, was sustained on October 26, 1910, but that the action was not commenced until September 11, 1911. The cattle were loaded at Electra, Tex., where there is no railroad agent, and when they reached Wichita Falls, Tex., which has the necessary facilities, the contracts were signed in behalf of the plaintiffs by the parties in charge of the cattle and who accompanied them to St. Louis. While a
It is insisted by plaintiffs that compliance with the condition limiting the time for bringing the action was waived by the defendant. ■ No attempt was made to prove an agreement to waive the limitation nor of any intention of the defendant to relinquish any right it had under the shipping contract. Waiver is largely a question of intention. There is no waiver unless so intended by one party and so accepted by the other. (40 Cyc. 261.) It is claimed, however, that defendant’s statements and acts are such as to estop it to insist on the application of the limitation. A number of letters were exchanged between the parties, and the contention is that the statements therein contained were such as to lead the plaintiffs to the belief that the requirement that an action upon the claims must be brought, if at all, within ninety-one days had been abandoned and that a strict compliance with it would not be insisted on. It may be assumed that the condition can be waived, and also that one party may so apt as to mislead another and so as to be estopped to say that noncompliance with the condition is a bar to the maintenance of the action.
“We are willing in order to dispose of this claim and avoid any further controversy to allow $92.47 in full settlement.
“Kindly advise if we shall issue voucher in favor for that amount.”
On July 3, 1911, the defendant answered the attorney with respect to the claim for $226.63, stating that investigation had not been completed as to that shipment, but that they were handling the matter by wire and would advise something definite as to the disposition of the claim in the near future. On July 18 the auditor of the defendant wrote in respect to the claim for $226.63, saying that the bill submitted was not justified, that the company was willing, in order to dispose of the claim, to allow a reasonable shrink together with extra feed, and stating: “We are willing to allow $76.92 in full settlement of this claim.”
The statements of defendant in its correspondence with the plaintiffs indicate a desire to compromise and settle the claims •even after the right to sue on them had been lost, but the statements and negotiations about settlement at that time can not be regarded as the surrender of any right by the defendant or the waiver of a bar which had already fallen. In a case of contract limitation as to the time in which an action may be brought and where the time had not yet expired it has been held that negotiations for a settlement will not have the effect to waive the time limit nor estop a party from asserting that the right to maintain an action has been lost. (Gooden v. Amoskeag Fire-Insurance Company, 20 N. H. 73; Blanks v. Insurance Company, 87 La. [36 La. Ann.] 599; McFarland & Steele v. Peabody Insurance Co., 6 W. Va. 425; Phœnix Ins. Co. of Brooklyn v. Lebcher, 20 Ill. App. 450; Metropolitan Accident Ass’n v. Clifton, 63 Ill. App. 152.)
There is no basis for a claim that the plaintiffs were induced to postpone the commencement of an action within the stipulated time by anything said or done by the defendant as none of the letters touching the subject was written until long after the limitation had expired. The last letter of defendant relat
Because the right to sue had been lost long before the action was brought the j udgment must be reversed and the cause remanded with directions to enter judgment in favor of defendant.