Appellee having a large number of beef cattle which he desired to ship to Chicago, made a verbal contract with *Page 404 appellant's agent at Sanger, a station on its road in Denton County, to have the necessary cars and engine ready for him on the morning of November 8, 1889; and relying upon this contract, he drove his cattle from his pasture to said station, where they arrived at about 11 a. m. Appellant had the necessary cars in compliance with his contract, but no engine at said station to handle the same, and appellee was compelled to put his cattle in the pens of appellant, which were very muddy, where they remained until about 2 or 3 o'clock of the morning of the 9th. For the damages thus received appellee instituted this suit and recovered judgment for the sum of $1040.
On the trial of the case in the court below, appellee was permitted to ask several of his witnesses, "How much, in their opinion, the cattle were damaged per head by reason of the fact that they remained in the muddy pens of the company thirteen hours on a cold, damp day and night, and did without food or something to eat from early Friday morning until about 9 or 10 o'clock Saturday night?" to which the defendant objected, for the reason that the opinion of the witness as called for respecting the damage per head was improper and misleading, and the testimony of the witnesses should have been confined to facts, leaving the jury to determine the amount of damage per head. The witnesses, in answer to this question, stated from the best of their knowledge it would be from $3 to $4 per head.
We think the action of the court in admitting this evidence was error, for which the judgment will have to be reversed. In this case these witnesses should have been allowed to state the effect the treatment mentioned in the question would have had upon the cattle, in reducing their weight and in affecting their saleable value in the several items alleged in the plaintiff's petition, leaving the jury to estimate the amount of damage resulting from these causes. From the general answer of these witnesses, giving the gross amount of damage per head, we are unable to state that in arriving at this amount they confined themselves to the legitimate items of damage to be taken into consideration in making the estimate. As to what is the effect of a given kind of treatment upon an animal, either in reducing or increasing its weight, or in injuring or benefiting its appearance, is a proper matter of opinion to be stated by a witness to the jury; but as to whether these several items constitute the legal damage in a given case, and the amount of such damage, the jury must decide under proper instructions from the court. Railway v. Greathouse, 82 Tex. 109; Kauffman Runge v. Babcock, 67 Tex. 241; Clardy v. Callicoate, 24 Tex. 170 [24 Tex. 170].
We think the court did not err in refusing to charge the jury that it would devolve upon plaintiff to prove authority on the part of defendant's station master to make the alleged verbal contract to furnish the engine and cars. This question has recently been fully considered by *Page 405 our Supreme Court. Easton v. Dudley, 78 Tex. 236; McCarty v. Railway, 79 Tex. 33; Railway v. McCarty, 82 Tex. 608 [82 Tex. 608].
We find no error in the charge of the court as set forth in appellant's fourth assignment of which it has just cause of complaint. We do not find it to be a charge upon the weight of the evidence, or objectionable in failing to use the term "market value;" but, on the contrary, we regard it as a very clear exposition of the law of the case, in so far as it did not admit of any recovery against appellant not authorized by the law.
Upon the trial of the case in the court below it was shown that after the cattle were loaded in the cars, and just as the journey was commencing, appellee signed a written contract for the shipment of said cattle, in which the following clauses appear:
"2. The shipper agrees to waive and release, and does hereby release, the company from any and all liability for or on account of any delay in shipping said stock after the delivery thereof to its agent, and from any delay in receiving the same after tender or delivery, and for breach of any alleged contract to furnish cars at any particular time; and the shipper hereby releases and does waive and bar any and all cause of action for any damage whatsoever that has occurred to the shipper by any written or verbal contract prior to the execution hereof, concerning said stock or any of them."
"9. That for the consideration aforesaid said shipper further agrees, that as a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded on the company's road, or previous to loading thereof for shipment, he, they, or his or their agents in charge of the stock will give notice in writing of his claim therefor, specifying the nature of the claim to its station master, at said last named station on the company's road, before said stock is removed from said station, and before the same shall have been removed, slaughtered, or intermingled with other stock, and will not move said stock from said station until the expiration of three hours after the giving of such notice, to the end that such claim may be fully and fairly investigated; and that a failure to fully comply with the terms of this clause shall be a complete bar to any recovery of any and all such damages. The written notice herein provided for can not and shall not be waived by any person except such station master, and by him only in writing."
Appellant requested the court to instruct the jury that by this contract appellee had waived and released all claim for damages accruing to the cattle before the execution of the same, and in its sixth assignment complains at the refusal of the court to give this instruction.
In the case of Railway v. McCarty, 82 Tex. 608, because there was no evidence of any consideration for such waiver introduced upon the trial, it was held that the court did not err in disregarding this clause in *Page 406 the written contract in question in that case. We are unable to say from the report of that case whether there was any proper plea of a want of consideration for such written contract or not, but suppose such plea was filed, as no question was raised thereon. In this case appellee filed no plea of want of consideration, and in such state of the pleading we are of opinion that the written contract made the basis of appellant's answer imported a sufficient consideration, which could only be called in question by a proper plea, supported by affidavit.
Article 4488 of the Revised Statutes provides that "every contract in writing hereafter made shall be held to import a consideration, in the same manner and as fully as sealed instruments have heretofore done," and by subdivision 10 of article 1265 of the Revised Statutes it is required that an answer setting up that a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part, shall be verified by affidavit; and we see no reason why these provisions of our statute should not be held to apply to the contract pleaded in this case.
Appellant also requested the court to charge the jury, that if they believed from the evidence that, in the exercise of ordinary diligence, the agent of the plaintiff could have served the written notice or claim of damage on defendant's station master at Purcell, and failed to do so, to find for the defendant, and in its seventh assignment complains of the refusal of the court to give such charge.
Appellant in its brief has not called our attention to the particular clause in this contract which it claims required the giving of notice to its agent at Purcell. It might be, however, that the expression that notice should be given "to its station master at said last named station" refers to Purcell as such station. If this be a correct interpretation of the contract, we are of opinion that the court, in view of the allegation in appellant's answer that its agent at Purcell was known to appellee, and was easily accessible, should have given this charge. The jury, however, in passing upon the reasonableness of such requirement, would be authorized to take into consideration the length of time the cattle were stopped at Purcell, and the facilities afforded appellee for giving this notice, and all of the attendant circumstances. If appellant relied upon this clause in its contract as being reasonable, it would be its duty to afford reasonable time, opportunity, and other facilities for complying therewith; and as to whether this was done in the particular instance would be a question for the jury to decide. Railway v. Childress Co., ante, 302, and authorities therein cited.
For the errors above indicated the judgment of the court below is reversed and the cause remanded for a new trial.
Reversed and remanded. *Page 407