The following agreement, entered into by the parties to this appeal, presents the questions involved in this cause:
"1. On May 26, 1890, J. N. McFaden and G. W. Logan, who composed the copartnership of McFaden Logan, applied to the local station agent of H. C. Cross and George A. Eddy, receivers of the Missouri, Kansas Texas Railway, at Taylor Station, in Williamson County, Texas, for cars to be in readiness at that place on May 30, 1890, in which to ship on that date 85 head of beef cattle to the Chicago market. The said station agent received the application, and promised, if cars could be gotten, to have them in readiness at said station on said date for the shipment of said cattle.
"2. Between 10 a. m. and 12 m. of said May 30, McFaden Logan tendered to the said receivers' agent at said Taylor Station the said 85 head of cattle to be received and transported by them to Chicago, and at that time the said cars, which had been ordered on said May 26, were in the yards at said station and in readiness to be used for such purpose. *Page 464 The agent refused to receive said cattle for shipment, when tendered as aforesaid, until other cattle in the pens and yard awaiting shipment could be loaded out.
"3. Late in the evening the cattle were penned, and thereafter kept in the pens for about twenty-four hours before being shipped out, whereby, and by reason of injuries received en route, and a decline in the market, the cattle were damaged in the amount of the judgment — $343.
"4. The reason the said cattle were not received by said agent on said May 30th, and shipped out on that date, was an unusual and unprecedented rush of transit and local cattle at said Taylor Station on said day, which transit cattle had been received from connecting lines and local cattle from shippers at a date subsequent to May 26, the day when the cars were ordered as aforesaid. The said receivers had, on the occasion of the unprecedented rush, ample facilities for handling the ordinary cattle traffic at said station, and plaintiffs' cattle could have been shipped out when tendered had they been given precedence over the other cattle.
"It is agreed between the parties hereto, acting through their respective counsel, that the only question for decision is:
"Is a common carrier, who agrees to furnish at a certain time and place, if they can be gotten, cars for the transportation of live stock, and who has on hand at the time and place specified the cars applied for, relieved from liability for damage from delay in the shipment of the live stock after tender of same by the party making application, because of an unusual and unprecedented accumulation of live stock at said time and place, received in transitu from connecting carriers and local shippers; all of said live stock being received after the day upon which the application for cars was made, and some after the live stock of the party so applying had been tendered for shipment? In other words, has the common carrier the legal right to give precedence of shipment to the live stock received as aforesaid from connecting carriers and local shippers over the stock tendered by the shipper who has applied for cars to take his stock out on a day certain, without being liable to such shipper for resulting damage?"
These facts show a contract between the parties, wherein the carrier agreed to furnish cars, if they could be procured, at a certain time and place, to be used by the shipper in transporting his cattle to the Chicago market. The shipper agreed to deliver the cattle for shipment at the time and place agreed on.
The facts show that the cattle were delivered and presented for shipment at the time and place agreed on, and that cars were on hand that could have been used for the purpose of shipping said cattle; but the agent of appellants refused to receive and ship the cattle at the time agreed on, because the cars were being used for the purpose of shipping other live stock. *Page 465
We know of no law that prohibits the making of contracts such as this; and when entered into they are to be governed by the ordinary and general rules of construction that relate to contracts and the breaches thereof.
In the absence of this contract the defense and excuse presented by appellants for failing to promptly ship the cattle would ordinarily excuse the carrier from liability. But such is not the case here, as the rights of the parties rest upon the contract. And for a breach of the contract by the carrier, it is as much liable as for other violated engagements that it is permitted to enter into.
The cars being on hand, the carrier should have performed its engagement; and for its refusal to so do, it is liable for the damages resulting from such breach of the contract. Railway v. Nicholson, 61 Tex. 495; Railway v. McCorquodale,71 Tex. 46.
The judgment of the court below is affirmed.
Affirmed.