We do not think the court below erred in sustaining plaintiff's exception to defendant's answer setting up the failure of plaintiff to give notice of damage to the cattle. The contract of shipment required plaintiff to give notice of claim of damages to some general officer of the company or to the agent nearest to the delivering station, within ninety days after the loss or damage. The statutes declares, that such notice when stipulated "may be given to the nearest or any other convenient local agent." Gen. Laws 1891, p. 20. It further declares, that "it shall be presumed that notice has been given, unless the want of notice is specially pleaded under oath." The plea setting up the failure to give the notice was verified by the affidavit of defendant's station agent at the point of destination on its road, to the effect that the facts stated in the plea of failure to give the notice at such station were true, "and in so far as they relate to such notice by said Pietzsch to any other officer or agent of the Missouri, Kansas Texas Railway Company and of defendant, I am reliably informed and verily believe them to be true."
In our opinion, the rule as laid down in Wilson v. Adams,15 Tex. 324, and in Graham v. McCarty, 69 Tex. 324 [69 Tex. 324], is applicable to cases like the one at bar. The affidavit must be positive, and not from hearsay. It must be that the facts stated in the plea are true. Pullen v. Baker, 41 Tex. 420. The affidavit was not made by any general officer of defendant or by its attorney, and while we think the affidavit of the local station agent would be received in support of the plea as to failure to give notice to him, it would not be extended in a judicial proceeding to matters beyond his knowledge or in the knowledge of other agents or officers of the company. He was in no sense a party to the suit; he was a witness only, and could by his affidavit only be a witness to facts known to him. He could not swear to facts only known to others.
We have carefully examined and considered other questions presented in the well prepared brief of counsel for appellant, and find that there was no error committed on the trial by the rulings and charge of the court, or in refusing a new trial, and conclude that the judgment ought to be affirmed, and it is so ordered.
Affirmed. *Page 576