text:
    POWER STATE BANK et al. v. TEXAS NOVELTY ADVERTISING CO.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 15, 1913.)
    1. Venue (§ 7) — County oe Residence.
    Where defendant did not assume to pay the account sued on as his personal debt, but merely agreed with another, who resided in H. county, to pay out of a fund deposited by such other in defendant’s bank for the payment of such account by defendant, pursuant to an agreement between them, defendant should be sued in the county of his residence and not in H. county.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 13-16; Dec. Dig. § 7.]
    2. Contracts (§ 189) — 'Construction.
    Defendant acquired the holdings of the S. bank, and assumed in a limited way the performance of certain of its obligations by an agreement which provided that a part of the purchase price should remain on deposit in defendant’s bank tp secure the payment of accounts included in the purchase and as a guaranty that the books showed the true condition of such accounts, and that defendant would pay all accounts for stationery, and expenses due from the S. bank and charge the same to the deposit in defendant’s bank as a proper charge against the S. bank. Meld, that an indebtedness which had been contracted by the S. bank for printed matter was .not assumed by defendant as his individual indebtedness.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 811-845, 900-902, 905; Dec. Dig. § 189.]
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Action by the Texas Novelty Advertising Company against the Power State Bank and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    W. C. Forgy, of Archer City, and R. M. Vaughan, of Hillsboro, for appellants. F. E. McKee, of Hillsboro, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

This suit was brought by appellee in the justice court of Hill county to recover $166 and interest of appellants on an account contracted by the First State Bank of Archer City, the payment of which is charged to have been assumed by appellants, both of whom are residents of Archer county, Tex. Appellants filed a plea of privilege to be sued in their own county, which plea was heard by the court and overruled.. A trial resulted in favor of appellee as. against F. M. Power alone for the amount claimed and in favor of the Power State' Bank, from which judgment F. M. Power has appealed.

The court erred in not sustaining the appellants’ plea to be sued in his own county. The account sued on was that of appellee, contracted with the First State Bank of Archer City, which was made payable at Hillsboro, Hill county, Tex. The contract made between F. M. Power and the First State Bank of Archer City, and in so far as related to the issue involved in this controversy, is as shown by agreement to be as follows: “The following portion of the contract of date January 25, 1911, between F. M. Power as party of the first part, and Lon Morris et al. as parties of the second part, whereby the said F. M. Power acquired the holdings of the First State Bank of Archer City, Texas, and in a limited way. assumed the performance of certain Obligations of said bank, was offered in evidence, namely: ‘Immediately after January 25, 1911, the first party will pay to any and all shareholders of the said bank 50 per cent., or one-half of the value of such stock, provided that the stock certificates are presented and have the amount of such payment indorsed thereon, and the remaining portion of the said purchase price to remain on deposit in the Power State Bank of Archer City, Texas, to secure the payment .of all notes and accounts included in said purchase and to secure and guarantee that the books and accounts are correct and show the true condition of such notes and accounts. The first party will renew, extend and carry over any and all notes- and accounts received by him in said purchase that may be desired by second party to the first day of January, 1912, but will not renew, extend, or carry over any notes or accounts unless requested so to do in writing, by second party, and in doing so will accept such notes and accounts as his own, and second party will be discharged from any liability thereon; and second party will furnish request in writing for such extension or renewals from time to time and at any time demanded. The first party will do and perform any and all things concerning said business including keeping the books and looking after the collecting the notes and accounts, and will use his best endeavors to get any and all of said business and keep it in proper form without charge of any kind against second party; and will institute and defend all suits and foreclosure proceedings that may be demanded by second party — the second party to pay tbe court costs and attorney’s fees thereof, and the first party will not charge any shortage or default against said escrow account before January 1, 1912. The first party will pay the taxes due against second party, and will pay all accounts of stationery and expenses due against second party not to exceed the sum of two hundred dollars, and charge the same to the said escrow account as a proper charge against second party. It is, however, understood and agreed that first party does not assume the payment of said taxes or expenses on his own account, nor does he assume the payment of any money, except such as is shown on the said books of said bank. Also the contract sued on by plaintiff was offered in evidence showing that the First State Bank of Archer City, Texas, on the 12th day of July, A. D. 1910, contracted to pay Texas Novelty Advertising Company for certain printed matter, one hundred sixty-six ($166.-00) dollars, on the 1st day of December, A. D. 1910, at Hillsboro, Hill county, Texas.”

It will be seen from said contract that F. M. Power did not individually assume the payment of said indebtedness, nor does the evidence show that the account was shown upon the books of said bank as required by contract, but on the contrary it shows that said account was not shown on said books. There being no individual assumption of said account, the appellant was not liable to be sued in Hill county.

Whether or not there are sufficient funds left of the amount in escrow to pay on said claim, and what the liability of appellant is as trustee of said escrow fund, are the only matters for the court to determine.

The judgment will be reversed, and cause remanded, and the court below is instructed to transfer the cause to justice’s precinct No. 1, Archer county, for trial.

The cause is reversed and remanded.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    HOUSTON & T. C. R. CO. et al. v. COMMONS et al.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 15, 1913.
    Rehearing Denied Dec. 6, 1913.)
    1. Cabbiebs (§ 132) — Injuries to Goods— Action — Evidence.
    In an action for damages to eggs shipped in the same car with live poultry, in which the carriers contended that the shipment was illegal because its tariff sheets as filed with the Interstate Commerce Commission did not authorize the mixing of eggs and live poultry to obtain the car load freight rate, but it appeared that the eggs were not so shipped secretly to fraudulently obtain the lower rate but with the knowledge of the carriers’ agent at the point of shipment, and that the freight charges were to be collected at destination, and it did not appear that the agent at the point of destination did not know that the eggs were included in the shipment and did not collect the scheduled rate, it would he presumed that he collected such rate as it was his duty to do.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-582, 605; Dee. Dig. § 132.]
    2. Cabbiebs (§ 112) — Injuries to Goods— Liability — Legality oe Shipment.
    Where, though a shipper of eggs included them with live poultry to make a car load, thus obtaining a lower freight rate than he was entitled to, he did so in good faith, with the knowledge of the carriers’ agent, the illegality of the shipment did not absolve the carriers of liability for damages to the eggs through their negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 480, 484, 485; Dec. Dig. § 112.]
    Appeal from Collin County Court; H. L. Davis, Judge.
    Action by A. J. Commons and others against the Houston & Texas Central Railroad Company and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed,
    Baker, Botts, Parker & Garwood, of Houston, and G. R. Smith, of McKinney, for appellants. J. R. Gough, of McKinney, for ap-pellees.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am, Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

This suit was originally brought in the justice court of Collin county, Tex., by the appellees against the appellants for damages to certain eggs and chops shipped with a car load of live poultry from McKinney, Tex., to Los Angeles, Cal. Appel-lees recovered judgment in the justice court. Notice of appeal was given by appellants and appeal perfected by filing the appeal bond to the county court of Collin county, Tex., where the case was again tried before the court and a judgment again rendered in favor of appellees against both appellants for the sum of $137.67. Appellants’ motion for a new trial being overruled, they appealed.

Prior to the date of this shipment, the defendants had prepared rate sheets and schedules fixing the joint and through freight rates and charges for the different classes of freight from points in Texas, including the city of McKinney, to points in California, including the city of Los Angeles, and these tariff sheets had been filed with the Interstate Commerce Commission and posted and published as required by what is known as the Interstate Commerce Act, then in force. There was no provision in the tariff sheets expressly authorizing the mixing of a car load shipment of live poultry of the minimum weight of 20,000 pounds transported from McKinney, Tex., to Los Angeles, Cal,; the freight charges would be $2 per hundredweight, while the freight rate for eggs less than car load lots from and to the same points was $2.60 per hundred pounds. There were no freight charges billed against the eggs as such in the shipment in question, and it does not appear that there was any freight paid for the shipment of eggs as eggs. The poultry did not weigh 20,000 pounds and the eggs, with the knowledge and consent of appellants’ agent at McKinney, were placed in the ear to make up the minimum weight of 20,000 pounds for a car load of lire poultry. The appellees recovered $72 for the damage to the eggs.

Appellants contend in effect that the shipment in question being an interstate one, and the right or privilege to ship the eggs in the same car with the live poultry to make up the minimum car load weight of 20,000 pounds not having been incorporated in the tariff sheets of the appellants and published in accordance with the requirements of the Interstate Commerce Act of February 4, 1887 (24 Stat. 379, c. 104 [U. S. Comp. St. 1901, p. 3154]), as amended in June, 1906 (34 Stat. 586, c. 3591 [U. S. Comp. St. Supp. 1911, p. 1284]), the contract or agreement between the appellees and the agent of appellants at McKinney, Tex., to so ship the property, if there was such a contract, was illegal, and no recovery can be had for any damage to the eggs while in transportation. We are of opinion this contention should not prevail. There was testimony introduced to the effect that there was no provision in the rate sheets and schedules filed with the Interstate Commerce Commission authorizing the mixing of ear load shipments of live poultry and eggs, but, if there was any express prohibition of such shipments, it does not appear. The testimony is ample to support the finding that the eggs in question were shipped in the car with the poultry with the knowledge and consent of the appellants’ agent at McKinney, and that the duty of collecting the fixed freight rate for the transportation of the eggs devolved upon the railway company’s agents. “The shipment was billed collect,” and the freight in such a case is paid at destination. It was the duty of appellants’ agent at Los Angeles, Cal., to collect for the shipment of eggs the rate prescribed in the tariff sheets filed with the Interstate Commerce Commission. The company’s agent, W. E. Briggs, testified, among other things: “If the agent at destination had discovered the fact that eggs were loaded in the car, it would have been his duty under the regulation of the tariff to have assessed the less than car load rate on the actual weight of the shipment.” There is nothing in the testimony that would justify the conclusion that the eggs were secretly shipped in the car with the poultry to fraudulently secure a less freight rate than that named in the rate sheets and schedules filed with the Interstate Commerce Commission. The testimony of at least two witnesses offered by the appellees is positive that appellants’ agent at McKinney was informed and actually knew that the eggs were being or had been placed in the car with the poultry for shipment, while the testimony of this agent is to the effect he does not remember that he gave permission for the eggs to be loaded in the car with the poultry; that he has no recollection of any eggs being loaded in the car with the poultry. The eggs, together with the poultry, were delivered at point of destination, and it does not appear that the railway company’s agent there did not know the eggs had been shipped with the poultry. The fair, if not the conclusive, presumption is that he did know of such shipment. The bill of lading, which was in the hands of appellants’ agent, was not introduced in evidence; and, while the waybill delivered to appellees shows that the weight of the shipment was 20,000 pounds and that the freight charges were $400, yet the amount of freight actually paid is nowhere disclosed by the evidence. It occurs to us that in the state of the evidence the presumption should be indulged that the shippers paid at destination, to secure the delivery of the poultry and eggs, the freight charges fixed by the tariff sheets. It was the duty of appellants’ agents at such point to collect such charges, and, if they did not do so, we do not think appellants should be heard to complain and urge in defense of appellees’ cause of action that the contract for the shipment of eggs was illegal, and no recovery for the damage done the eggs as a result of their negligence can be had.

But, however this may be, we are unwilling to hold that appellants are absolved from all liability for the damage done appellees’ eggs by the negligence of appellants’ servants while being transported, upon the theory that the eggs were accepted for shipment, with the poultry, at a less freight rate than that prescribed in the tariff sheets filed with the Interstate Commerce Commission. To so hold would be in effect to say that because of such acceptance the railway company was authorized to confiscate or convert to its own use the eggs shipped. If the company, because of such fact, can escape liability for the damages sustained by appel-lees as a result of their negligence in handling the eggs while in transportation, then why could it not have refused to deliver them at all at destination and have appropriated them to its own use, without incurring any liability for such disposition of the property? No good reason, we apprehend, can be given why it may not have pursued that course. The evidence does not sustain the view that the eggs were placed in the car with the poultry without the knowledge of appellant, or against its will, or with the intent of defrauding the appellant. On the contrary, it is a fair inference that appellants’ agent at McKinney and the appellees, or at least the appellees, in good faith assumed and believed that in shipping the eggs in the car with the poultry they were doing no wrong; and though the schedules and tariff sheets filed by the appellants with the Interstate Commerce Commission may not have permitted the shipment of eggs with a car load of live poultry in order to make up the minimum car load weight of 20,000 pounds, at the freight rate of $2 per hundredweight, and that such shipment in this instance was in that sense an illegal act, yet we are of the opinion that under the circumstances of the case the appellants, having undertaken and assumed to transport the eggs in the ear with the poultry, cannot escape liability for the consequences of their negligence which resulted in damage to the eggs on that ground. The infliction of no such penalty for such an act was contemplated, we think, by the Interstate Commerce Act. Southern Pacific Co. v. Schuyler, 227 U. S. 601, 33 Sup. Ct. 277, 43 L. R. A. (N. S.) 901. We regard the facts here as being dissimilar to those in the case of Bergin v. Railway Company, 150 S. W. 1184, and not ruled by the decision in that case. This disposes of the only question raised on the appeal that need be discussed.

It is quite sufficient to say that the other assignments of error have been examined with the conclusion reached that none of them point out reversible error.

The Judgment is affirmed.