Appellee sued appellant for $21,000 actual and $20,000 vindictive damages, alleged to have arisen by reason of a failure of appellant to properly care for and deliver 1407 hogs, which it had contracted to carry from Kansas City, Missouri, to the City of Mexico, Mexico.
Appellant answered, setting up a written contract, and denying that it had agreed to deliver the hogs in the City of Mexico, but only to carry them to El Paso, Texas; that the damage to the hogs occurred on the line of its connecting carrier, the Mexican Central Railway Company, which had been delayed in the transportation of the hogs by a strike and washouts on its line.
In a supplemental petition appellee alleged fraud and misrepresentation in procuring his signature to the written contract; that the hogs were shipped by a verbal contract to transport the hogs to the City of Mexico; that after the journey had begun, at a small station, a paper was presented to him, and he was told to sign it at once as the train was to leave in a few seconds, and that it was represented that the paper was nothing but a document upon which appellee and his hands would be transported; that appellant and its connecting line were partners, and jointly interested in the freight money. Appellant replied to this supplemental petition by exceptions and a general denial. The judgment was for $14,850.57, the case having been tried by a jury.
Conclusions of Fact. — 1. In the early part of August, 1887, appellant made a verbal agreement with appellee, through its assistant general freight agent, to transport for a certain consideration, from Kansas City, Missouri, to the City of Mexico, 1407 fat hogs, at the rate of twenty-five miles an hour; that the hogs were to be stopped and unloaded, fed, and watered at La Junta, El Paso, Jimulco, and the City of Mexico; that pens would be furnished at these places with troughs, and the pens were to be flushed with water; that the tanks along the route were to be kept filled with water, so that the hogs could be sprinkled with water.
2. The hogs were delivered to appellant, and the train left Kansas City about 9:30 o'clock p.m. on August 13, 1887, and no written contract was presented until the train had gone to Argentine, a small town about four and one-half miles from Kansas City; that when this place was reached appellant was told to hurry up and sign for transportation; that he was told he did not have a minute; that he went upstairs in the station, being hurried all the while, and was told to sign a paper, which he did. Appellant did not know what the contents of the paper were, but was told that it was for his transportation. *Page 678
3. That poor time was made between Kansas City and El Paso, and the hogs were greatly injured by being permitted to stand on side tracks in the hot sun; and no facilities were offered for watering the hogs, and the weather was very hot and the hogs very fat.
4. The hogs arrived at El Paso on the morning of the 17th of August, and were placed by appellant in an open pen filled with filth, and no troughs being provided, the water was turned into the pen and the hogs had to drink the filthy water; that the hogs were kept in this pen for four or five days before appellee could get them started again to Mexico; that some fifty or sixty of the hogs died between the time the shipment left Kansas City and when they left El Paso.
5. A slow run was made between El Paso and Mexico, and the hogs were thrown about and so bruised and injured by the careless and reckless manner in which they were handled that a large number died.
6. That 347 head of hogs died between Kansas City and the City of Mexico; that all the hogs weighed on an average, when they left Kansas City, 330 pounds each, and the average weight of those that were living when they arrived in the City of Mexico was 284 pounds, the average loss per head being 46 pounds, when, if they had been properly transported and cared for, the average loss should not have been more than 12 pounds per head.
7. That these hogs were worth on the market in Mexico from 14 to 15 cents in Mexican money per pound, but appellee had contracted his at 11 cents per pound; that a dollar in Mexican money was worth at that time 80 cents in money of the United States.
8. That the death of the hogs and the loss of the others was occasioned by the negligence and carelessness and failure to comply with its contract on the part of the appellant and its connecting line.
9. That appellant and the Mexican Central Railway Company were partners and jointly interested in and bound by the contract of shipment of the hogs.
10. That appellant does not complain of the amount of the judgment, and the amount for which the verdict is rendered is amply sustained by the proof.
Appellant endeavored to justify the delay in the transportation of the hogs on the ground that a strike was prevailing on the Mexican Central Railway, its connecting line, and that there were washouts on the same railway that prevented the forwarding of the hogs from El Paso, Texas, to the City of Mexico. It is admitted by appellant, that the question in regard to a strike being in operation that interfered with traffic on the Mexican Central Railway was fully submitted to the jury, and it is also practically admitted that the strike was of little consequence; but it is insisted that the question of whether washouts interfered with and delayed the shipment of hogs from El Paso should have been submitted to the *Page 679 jury. This was not done, and appellant requested a special charge embodying the question of nonliability if there were washouts.
There is no testimony whatever to sustain the allegation that the delay was caused by washouts. It is true that McQuin stated that Mr. Comfort, who was a passenger conductor on the Mexican Central Railway, notified him that he (Comfort) could not receive the hogs, because "there was a strike and washouts." He also swore that he had informed the general claim agent of appellant, some months afterward, that the Mexican Central had refused to receive the hogs on account of a strike and washouts. When Comfort testified, he gave details of the strike, but does not intimate that there were any washouts on the Mexican Central Railway. He also swore that the road was not ballasted, and that the track was soft from heavy rains, but in no manner hints that there were any washouts. It is true that he stated that he had been compelled a few days before the hogs were received to fix a bridge, but does not indicate that its defective condition arose from the hard rains or washouts, and there is nothing to show that the bridge was down on August 17, 1887, when the hogs reached El Paso, or at any time after that period. The run made by the conductor, Comfort, was between El Paso del Norte and Chihuahua, and over that part of the road the run of the hog train was satisfactory.
The train dispatcher of the Mexican Central, A. Newell, swore that the weather reports from his road were sent through his office, and that while the road in many places was not fit for fast traffic in August, 1887, there was no trouble with the bridges or culverts at that time, so far as he remembered. He did not know why the railway company did not provide against rains, as they came every year at that time. Appellant asked an instruction only as to washouts, and there was no testimony that showed that a washout occurred on the Mexican Central Railway during August, 1887. There being no testimony whatever to support the charge, there was no error in refusing it. Wooters v. Kaufman, 73 Tex. 395; Rousal v. Stranger,73 Tex. 670; Tel. Co. v. Kendzora, 77 Tex. 257 [77 Tex. 257]; Railway v. Greathouse, 82 Tex. 104.
The second assignment of error is, that "The court erred in assuming in its charge that the written contracts of shipment were through contracts, and in refusing to submit to the jury defendant's fifth special charge, for the reason that if the jury had found under the other portions of the charge of the court that the written contracts were the governing contracts of shipment, then defendant would not be liable for losses occasioned by the Mexican Central Railway Company, through no fault of this defendant."
The charge of the court is not open to the criticism made in the assignment; but if it were, appellant would have no cause of complaint. The contract has no clause limiting liability to its own line, and while it may be true that it was a contract for a shipment from Kansas City to El Paso, Texas, yet under the pleadings and proof in this case appellant would be *Page 680 liable for the damages that occurred even on the line of the Mexican Central Railway.
Appellee in his first supplemental petition alleges, "that in said contract for the shipment of said hogs the defendant and the Mexican Central Railway Company were partners, and were jointly interested therein in the proportion which had been agreed upon between them." There was no denial of this plea under oath by appellant. There is no plea to it, except that of general denial, which, it is perhaps unnecessary to say, was not verified by affidavit. The partnership having been alleged, and there being no denial of it, as required by the statute, it did not devolve upon appellee to introduce any proof that the partnership existed. It was not denied; it was not an issuable fact, but taken as admitted by appellant. Railway v. Tisdale, 74 Tex. 9. The partnership having been pleaded and not denied, it is to be taken as admitted, and then it would not matter whether the written contract was to convey the stock to El Paso, and to there deliver said stock to the partner, the Mexican Central Railway Company, or was a contract for a through shipment to the City of Mexico, and appellant would be liable for the damages that accrued on the latter railway.
The two roads were partners in the shipment; the freight was to be collected in the City of Mexico, and the hogs were consigned to appellee at the City of Mexico, and a tort or violation of contract committed by one of the partners was the act of both, and either could be sued and held liable, if the tort grew out of the prosecution of the partnership business. We think that even if proof of the partnership had been required under the pleadings, that the testimony is sufficient to establish it.
There was ample proof to sustain the allegation in appellee's pleading, that appellee was overreached and caused to sign a contract with whose contents he was not acquainted, and with which he was not permitted to acquaint himself by appellant. The written contract was not presented to appellee until he was en route for El Paso, and he was then told that it was merely a paper that secured him transportation; and not being given time in which to read it, and relying upon the statements made to him, and impelled by the fact that he was told that he must sign to get transportation, he signed the contract. This was a different contract from the verbal one under which the hogs were shipped. In the verbal contract it was agreed that troughs should be furnished for the hogs, that a running time of twenty-five miles per hour should be made, and that the hogs should be shipped through without delay to the City of Mexico.
The question of whether the written or verbal contract should control was properly submitted to the jury; and while this was unnecessary under our view of the case, still from the standpoint of the appellant, the charge was sufficient. It has been held, that where goods had been shipped under a verbal contract, the delivery afterwards to the shipper *Page 681 of a bill of lading, his attention not being called to its terms or conditions, did not conclude him from showing what the actual agreement was under which the shipment was made. Swift v. Steamship Co., 106 N.Y. 206; Sproat v. Donnell, 26 Maine, 187; Hutch. on Carr., sec. 128.
The third assignment of error holds that the charge of the court in regard to the signing of the written contract was upon the weight of the evidence. This assignment has no foundation to support it. The charge leaves it for the jury to find whether or not the necessary time was given to inspect the written contract, and whether the contents were misrepresented to appellee.
Neither is there any merit in the fourth assignment, which attacks that portion of the charge which instructs the jury, that if they believe that appellant and appellee made a verbal contract, and that the hogs were received, and the journey was begun, and a written contract was presented to appellee, and he signed it with a knowledge of its contents, or that he had sufficient time to have read its contents, and was not induced to sign it by any false representations of appellant's agent, or that he signed the same under circumstances that he should have read the same, then the jury should find for the appellant. There was nothing objectionable in this charge. The verbal contract would not be merged into a written contract obtained by fraud or misrepresentation. Appellee swore that the contents of the contract were misrepresented to him, and that no time was given for him to investigate its contents, and there is no effort to disprove it. No part of the verbal contract is denied, except as to the time to be made.
The third and fourth assignments might have been disposed of, as was the second, on the ground that it was immaterial what was charged or not charged in regard to the written contract, it being alleged (and not denied) and proved that a partnership existed between appellant and its connecting line.
The petition claims damages in a certain sum of money, denominated as so many "dollars," and the evidence showed that appellee was to receive 11 cents per pound in Mexican money for the hogs, and that Mexican money was worth 80 cents on the dollar. The court charged the jury, that "In rendering your verdict, if you find any sum clue plaintiff, you will state the amount in United States currency, and in making your calculation in United States currency of the value of said hogs in Mexican money, you are charged to be governed by the evidence as to the value of Mexican money as compared with current money of the United States."
This is objected to, because there is no allegation that the hogs were to be paid for in Mexican money, or what was the value of Mexican money. If the charge was erroneous, it certainly enured to the benefit of appellant, and so far as it is concerned is harmless. There was no objection *Page 682 offered to the testimony that the hogs were to be paid for in Mexican money, nor to that showing the value of Mexican money.
The object of the whole investigation involved in the trial was to ascertain how much, if any, appellee had been damaged by the failure of appellant to perform its contract of carriage. There was a declaration that he had been damaged in a certain sum, but the proof showed that the sum in which appellee was damaged was a less sum, as in arriving at the damage it was necessary, as the hogs were to be paid for in Mexican money, to find out the value of Mexican money in order to measure the damages in American money. Appellant might have objected to the proof of the contract in Mexican money, but he did not do so, and does not in his motion for a new trial call attention to the supposed error in the charge. The objection comes too late at this time.
We are of the opinion, however, that there was nothing objectionable in the testimony that the hogs were to be paid for in Mexican money, for the only question, as before intimated, to be determined, was the amount of damages appellee had sustained, and it would not matter what he was to be paid in. The measure of damages was the value of the hogs that were killed at the point of destination, and the difference in the market value of the hogs that were delivered in their injured state and what they would have sold for had they been properly delivered. It was unnecessary for appellee to set out what he was to receive for the hogs, except the money value; and proof that he had contracted to exchange the hogs for horses would have been sufficient, provided it was shown what the market value of the horses was in American money. The contract that appellee had to receive Mexican money could cut no figure in the case, except in the event there was a difference in the value of the two moneys. In this case the difference was in favor of appellant. There was no error in the charge.
The sixth assignment of error is aimed at the charge of the court which instructs the jury, that if they believed that before the hogs were removed from the possession of the Mexican Central Railway Company, appellee went to the agent of the railway in the City of Mexico and offered to give written notice of the damages, and it was waived, that this would be sufficient notice. This is considered objectionable by appellant, because the notice should have been given in El Paso. The stipulation provides that the notice shall be given at the point of destination, which was the City of Mexico, and in the answer it is alleged that appellant had an agent in the City of Mexico. Appellee, in Mexico, went to the general freight agent of the Mexican Central Railway Company, and offered to make a claim for the damages in writing, and it was expressly waived.
We have considered all the assignments of error, and are of the opinion that there is no error in the judgment. It is affirmed.
Affirmed. *Page 683
ON MOTION FOR REHEARING.