On Petition for, a Rehearing.
Gavin, J.After a reexamination of the original opinion in this case, there would not seem to be a very wide difference between the theory of the law upon which the case is there decided and the views expressed by counsel in their petition for rehearing, although we did not then, and do not now, deem it necessary to decide some of the questions so ably presented by appellant.
The learned counsel says: “I concede that the appellees were entitled to notice that their lumber had arrived, and that it was not forwarded, and the reason why such was not the case, if they did not know it already. The reason of this is that the owner may be enabled to protect himself from loss.”
Filed June 21, 1894.The only source from which counsel claim this information to have been shown to be possessed by Diether is from his conversation with Clisbee, set out in the original opinion. We are unable to construe this conversation to convey to appellees knowledge of the connecting carrier’s refusal to receive the car and pay the freight, which fact alone could have justified their demand for the payment of their freight at that time.
Attention is called to one or two slight inaccuracies in the statement of facts. Granting them to exist, they are such as could not in the slightest degree affect the result in the cause.
As to the damages recovered in the court below, since the appellees offered to remit $10 thereof, but the court seems to have overlooked it, we have concluded to order a credit upon the judgment for that amount as of the date thereof.
Upon this condition, the petition for rehearing is overruled, at the costs of appellant.