77 Mo. App. 205 | Mo. Ct. App. | 1898
This is an action to recover damages for the breach of a verbal contract, by which the defendant unconditionally undertook to receive and ship ten car loads of cattle on the evening of July 9, 1894, from its station at Lexington to Kansas City.
The answer contained the following allegations, that is to say:
“Defendant admits that it refused to accept said cattle for shipment on said ninth day of July, 1894, and avers that it had just and good ground for so doing, inasmuch as on that day, and for several days previous, and for several days thereafter, the switchmen in the, Kansas City railway yards, not the employees of this defendant, had gone out on a strike and refused to perform their usual duties, and suddenly and violently refused to allow other switchmen to take their places or perform their labor, and became a riotous mob, insomuch that United States marshals had to be placed in said yards to protect and switch and handle United States mail cars; and defendant avers that said strike was not occasioned by any grievance which said switchmen had against the Missouri Pacific Railway Company, but was wholly a strike in sympathy with the Chicago Pullman strikers; that on account of said strike, stock ears could not be handled through said yards to their destination at the stock yards, and that defendant refused to receive said stock for shipment for that reason.
“And for further answer the defendant avers that
There was a general denial coupled with other allegations identical with those contained in the answer in Wilson & Aull case reported in 66 Mo. App. 388.
The court, on motion of the plaintiff, struck out the above quoted paragraphs of the defendant’s answer for the reason that the same constituted no defense to the action. And the question now is as to the propriety of its action in that regard. The , , law is now well settled m this state to the effect that if the carrier had agreed to carry goods to their destination and then deliver them within a prescribed time he will be held to a strict performance of his contract and no temporary obstruction or even absolute impossibility will be a defense for failure .to comply with the engagement; for, when a party, by his own contract, creates a duty which he engages to perform, he is bound to make it good, notwithstanding an accident or delay by inevitable necessity, because he might have provided against it by his contract.” Harrison v. Railway, 74 Mo. 364; Davis v. Smith, 15 Mo. 467; Miller v. Railway, 62 Mo. App.
In Elliott on Railroads, section 1460, it is stated that: “The authorities require the conclusion that where there is an express contract, wherein the carrier undertakes, without limitation or qualification, to safely carry and deliver within a time definitely fixed by the contract, the fact that a mob prevents the carrier from performing the contract will not exonerate it from liability for loss of the goods. The theory of the decisions is that the carrier, if it desires to avail itself of the acts of mobs as a ground of defense, must so stipulate in the contract under which it undertakes to carry the property.”
A distinction is made between cases where there is an express contract to carry and deliver within a prescribed time and cases where there is no such express contract. In the former 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. Miller v. Railway, supra; Angell on Carriers, sec. 294; Elliott on Railways, supra; Read v. Railway, 60 Mo. 199, cited and relied on by defendant, was of the latter class. In that case there was no absolute and unconditional contract to deliver the property at the point of destination within a specified time, as here, and hence it is inapplicable. We have examined such of the other cases cited by defendant as are accessible to us, but have not found any of them in point. In none of these cases was there any express stipulation contained in the contract as to the time in which the shipment was to be transported to destination. The contract for carriage in all of them was that by which the carrier bound itself to safely carry and deliver the shipment within a reasonable
The defendant objects that the trial court erred in refusing its instruction in the nature of a demurrer to the evidence. It is indubitably shown by the uncontroverted evidence, if not impliedly admitted by the pleadings, that the defendant entered into an agreement to receive the plaintiff’s cattle at Lexington station on the evening of the ninth of July, 1894, and to deliver them at the Kansas City Stock Yards on the next morning in time to be on the market of that day. It is conceded that the defendant failed to comply with its agreement and as an excuse therefor it was pleaded that compliance was made impossible by the threats of violence of certain persons employed in the Kansas City Stock Yards over which it had no control, but which excuse we have already declared can not be invoked as a defense. Since there was a breach of the agreement and no sufficient excuse or justification pleaded and proved it must follow as an inevitable consequence that some damage resulted. In the absence of proof of the actual amount of damages the judgment of course could only be for the minimum amount — nominal damages. 1 Sutherland on Damages, sec. 2. So it appears that there was not an entire failure of proof, and therefore the defendant’s demurrer was properly refused.
Recurring to the evidence we there find that the plaintiff on the evening of the ninth of July drove his cattle from his pasture six miles away to Lexington station for shipment under the agreement; that when the cattle arrived at the station plaintiff was for the first time notified that defendant would not receive them. There was neither feed or water provided by defendant at its stock pens. The defendant could give no assurance when it could or would receive and ship plaintiff’s cattle. There was nothing left for plaintiff
It was the legal duty of the plaintiff to make every reasonable exertion to render the injury that had been occasioned by the defendant’s breach of the agreement as light as possible. If he failed to perform this duty the damages thereby suffered would not have been recoverable. The labor and expense which its performance involved was chargeable to the defendant who was liable for the injury so mitigated and this on the principle that if the efforts made are successful the defendant gets the benefit of them and if abortive it is but just that the
The other objections of the defendant are fully answered by what was said in Wilson & Aull’s ease, previously cited.
Perceiving no error in the record materially affecting the merits it follows that the judgment must be affirmed.