{ after stating the facts ). Some quite interesting questions of law are presented by this record, as, for instance, whether the local agent at Catoosa had authority to contract for delivery of the cattle at a time certain, when the terminus of the shipment was beyond the line of the road operated by defendants ; whether the strike of the butchers in Chicago, unknown when the shipment was made should have been allowed to go to the jury for their consideration in estimating the amount of damages ; whether the delay caused by striking employes on the Missouri Pacific and St. Louis Terminal fines in St. Louis, and beyond the terminus of defendants’ road, could bind the defendants. Besides these questions, many others are presented by the record, and the appellants have filed 31 specifications of error. But, in the view we take of the record, it is necessary to consider only the fourth, fifth, and seventh specifications of error, which are as follows, to wit: “(4) That the court erred in permitting the witness S. M. Thorp to testify, in response to a question of plaintiffs’ counsel, over the objection of the defendants ( which said objection was duly saved by an exception), as to thé price the cattle brought in Chicago. (5) That the court erred in permitting the witness S. M. Thorp to testify, in response to a question of plaintiffs’ counsel, over the objection of the defendants (which said, objection was duly saved by an exception), as follows: Q. Did you ever pay anything, Mr. Thorp, for the reshipment of the cattle from Bast St. Louis to Chicago?” “(7) That the court erred in permitting the witness S. M. Thorp to testify, in response to a question by plaintiffs’ counsel, over objection of defendants, (which said objection was duly saved by an exception), to the fact that the cattle were reshipped from East St. Louis to Chicago, when the only source of information of witness was hearsay.” These relate wholly to the admissibility of testimony, and we have copied that part of the testimony of S. M. Thorp relating to these specifications:
*700“ Q. What became of those cattle, Mr. Thorp? A. They kept them there until the 13th, the next day, — the 14th would be Saturday. Then they shipped them to Chicago for sale. Mr, Soper: Q. Were you there? A. No, sir. (Counsel for defendants objects to his stating what became of the cattle, on the ground that it would be hearsay, and moves the court to strike out his answer to the question). Mr. Hutchings: It will be withdrawn. Q. What became of those cattle? A. They were shipped to Chicago. Q. How do you know the cattle were shipped to Chicago? A. I received the returns of the sale from Godair, Harding & Co. Q. Have Godair, Harding & Co. a place of business in Chicago? A. They run under that name, and have offices in Chicago, St. Louis, and Kansas City. Q. Did Godair, Harding & Co. have the authority, express or implied, from you, to ship those cattle, or any cattle, — or, we will say, those cattle from East St. Louis, — to the Chicago market? A. It is supposed that our commission men will use their best judgment. Q. In what event do you instruct them to ship from the East St, Louis market to Chicago? A. If they cannot get a satisfactory price, to send them to Chicago. That was the general understanding, Q. What did those cattle bring you in Chicago, per hundredweight? (Counsel for the defendants objects to the question on the ground that it is not the best evidence, unless the witness was present. If he had a commission man, he should have taken his deposition. How does he know but what this commission man sold some other cattle? I object to what his commission man ever told him or wrote him, as being incompetent and improper). The court: The witnesá has stated that he authorized his commission merchants at East St. Louis/if they could not obtain a satisfactory price, to ship the cattle to Chicago. Mr. Soper: He says that was the general understanding. The court: I understood him to say that he authorized them,- in all shipments, and in-*701eluding this shipment, if they could not get a satisfactory price in Bast St. Louis, to ship to Chicago. Q,. Is that what you said? A. Yes, sir. The court: And that he was advised by his commission merchants that they were shipped to Chicago, and that he got his returns from the commission house in Chicago. The objection is overruled. (To which action of the court in so overruling said objection the counsel for the defendants then and there duly excepted). A.. $2.40. Mr. Soper: We move to strike out the answer on the ground' that, from the testimony of Mr. Thorp, it is merely hearsay, and is not the best evidence. (Which said motion to strike out is by the court overruled. To which action of the court in so overruling said objection or motion to strike out the counsel for the defendants then and there duly excepted). Q. Did you ever pay anything, Mr. Thorp, for the reshipment of the cattle from East St. Louis to Chicago? (Counsel for defendants object to this question on the ground that it is not a part of the measure of damages in this case. It has been shown that the cattle arrived at East St. Louis on the 12th of July, 1894, four hours before the market closed ; and there is no evidence in the case showing that it was necessary for the protection of the best interests of the plaintiffs tli it these cattle should be transported to Chicago, so as to charge these defendants with the cost of transportation of those cattle to Chicago. Nor is it shown that they might not have" been sold in East St. Louis subsequent to that day ; it already being in evidence that there was a market on the 13th day of July, ■1894). The court: This testimony would be irrelevant and incompetent if it appeared that the market was as good in East St. Louis, all things considered,'as it was in Chicago, and, unless it should appear by subsequent testimony that that fact is brought out, it will be incompetent; but it may be submitted at this time, assuming that it will be made relevant later on. Mr. Hutchings: It has been proyen that *702these cattle were left with the commission merchants who had offices in Chicago, St. Louis, and Kansas City. It is presumed that they were acquainted with the market, and that they would not have shipped the cattle to Chicago if it had not been for the protection of the interests of the plaintiffs. 'I have proven that the market was getting lower all the time in St. Louis. The court: The court is of the opinion that some evidence should be introduced by the plaintiffs to show that, when he shipped these cattle to Chicago, he could have done better with them there than anywhere else. Mr. Hutchings: I have shown that the day we arrived in East St. Louis the market was completely closed down, and the next day it was still lower. It is for the jury to say whether, if they had been in our commission man’s place, they would have sent the cattle to Chicago. The court: The court is of the opinion that all evidence that tends to show the condition of the market may go to thejury. The objection is overruled. (To which action of the court in so overruling said objection she counsel for the defendants then and there duly excepted.) Q. How much did you pay, Mr. Thorp? A. $255 additional expenses, and $37 for the extra amount of feed. Q. Extra amount of feed. A. On account of the delay in taking our cattle to Chicago, he had to buy extra feed. Q. Hid you have to employ a man to accompany the cattle? A. Yes, sir. Q. How much did you pay him? A. $8. JV r. Soper: Were you there? A. No, sir. Mr. Hutchings: Q. You paid for it, did you? A. Yes, sir. ■ Mr. Soper; I move to strike that part of his testimony out, for the reason that it is based entirely upon hearsay, and not upon facts within his own knowledge. The Court: I think these facts come within the res gestae of the case. The motion to strike out is overruled. (To which action of the court in so overruling said objection to strike out the counsel for the defendants then and there excepted.) Q. Mr. Thorp, Godair, Harding & Co., were your author*703ized agents, were they? A. Yes, sir. Q. When, does the greatest shrinkage in cattle occur? A. After they have been shipped to market, and unloaded, and fed and watered, then is the time that they are in the best condition to go on the market. As soon as they have had a drink of water and been fed their hay, then they are in the best condition they will ever be in. They don’t take a second fill. After the first fill, then there is a general decline in weight; and, if they go any length of time, there is quite a shrinkage. There is a shrinkage in the pounds of flesh, as well as the offal, the longer they are delayed.”
Cross examination: “Mr. Soper: Q. As a matter of fact, you left the disposition of your cattle entirely with your commission man? A. We have to do so. We cannot be on the market ourslves. Q. You know none of these facts, except by hearsay? A. I have the word of my men. Q. I mean, you have been informed by some one? A. Yes, sir. Q. You were not there yourself? A. No, sir. Q. Whatever was done was done by Godair, Harding & Co., without consulting you? A. They have a right to use their best judgment. Q. I was asking as to the facts in the case. A. Yes; in this case and in all cases. Q. You testified, I believe, Mr. Thorp, that these cattle were sold in Chicago for $2.40 per hundred weight? A. Yes, sir. Q. Your cattle would average about 925 pounds? A. We thought so. Q. I have here the National Live Stock Reporter, published at Hast St. Louis, for July 16, 1894, which shows the market at East St. Louis on the same day you sold your cattle in Chicago. That was the day on which you sold your cattle? A. Yes, sir. Q. I notice here, in reference to the Indian and Texas steers, as follows: ‘24 steers, 938, 265; 20 steers, 917, 280; 21 steers, 89y, 280. ’ Was the market in Chicago any higher than it was in East St. Louis on that day? A. I don’t know that I can tell you. Q. Was the market any better in *704Chicago on that day than it was at East St. Louis? A. I< don’t know. ’ ’
Redirect examination: “Mr. Hutchings: Q. Have you at any time since had any conversation with either of your commission men about the shipment of those cattle from East St. Louis to Chicago? A. Yes, sir. Q. Has either of them personally informed you that those cattle were reshippod from East St. Louis to Chicago? (Counsel for the defendants objects to the question on the ground that it is leading, and puts the language in the witness’ mouth, which objection is by the court sustained.) Q. How do you know they were reshipped from East St. Louis to Chicago? (Objected to by counsel for the defendants on the ground that it is incompetent and irrelevant, because the witness has already testified that he was not present, which objection is by the court overruled. To which action of the court in so overruling said objection, counsel for the defendants then and there duly excepted.) Q. How do you know that those cattle were reshipped from East St. Louis to Chicago? A. By the returns that I have received from there. Q. Did anybody ever personally tell you so? (Objected to by the counsel for the defendants on the ground that it is leading, which objection is by the court overruled. To which action of the court in so overruling said objection, the counsel for the defendants then and there duly excepted.)
It appears that Anderson, who went to St. Louis with the cattle, arrived there at about 9 o’clock a. m. of July 12th, and that he left St. Louis about 2 o’clock p. m. of that day. What became of those cattle after that is testified to by no witness with any knowledge of the facts. All that Mr. Thorp testified to was wholly hearsay testimony. Whether the cattle could have been sold in East St. Louis, whether any necessity existed to ship them to Chicago, whether they ever were shipped to Chicago, is testified to by *705'whether they ever were shipped to Chicago, is testified to by no one with any knowledge of the facts. We do not think that Mr. Thorp was a competent witness to these facts, and his testimony should have been excluded as hearsay. We do not think damages can be proven by this kind of testimony, and therefore the case should be reversed and remanded.
Clayton and Thomas, JJ., concur.