99 Ark. 363 | Ark. | 1911
(after stating the facts). First. The appellees cannot recover for the following reasons: (1) The undisputed evidence shows that appellant could not perform its contract to transport the cattle to Kansas City because of an act of God. The flood that washed away appellant’s track was an act of God within the exception to the carrier’s liability as an insurer of freight in his hands for transportation. Packard v. Taylor, 35 Ark. 402; Little Rock, M. R. & T. Ry. Co. v. Talbot, 47 Ark. 97. (2) The undisputed evidence shows that appellees, after being advised of the conditions that made it impossible for appellant to deliver the cattle to Kansas City under the contract, assented to the change of route and the diversion of the shipment to the consignee at St. Louis, instead of Kansas City. Appellees are therefore estopped from claiming any damages that may have been occasioned by reason of such change in the shipment.
Second. The testimony shows that there was an overcharge in the freight that appellees had to pay of $55. The appellant offered to confess judgment for the sum of $62.84. The appellees should have judgment for that sum. The judgment will be modified and affirmed for that amount, and as to the residue will be reversed and dismissed.