M., K. T. Ry. Co. v. Kyser Sutherland , 38 Tex. Civ. App. 355 ( 1905 )

Appellees brought this suit against the the Missouri, Kansas Texas Railway Company of Texas, and the Fort Worth Denver City Railway Company, to recover damages on account of injuries to certain livestock. The Fort Worth Denver City Railway Company filed a plea of privilege, and to the jurisdiction of the District Court of Falls County, which plea was sustained, and that defendant was dismissed from the case. There was a nonjury trial between the plaintiffs and the other defendant, and judgment was rendered for the plaintiffs for $1109.70.

The gist of the plaintiffs' action was the breach of a contract to furnish cars for the shipment of certain cattle from Waggoner, Indian Territory, to Marlin, Texas.

Without referring in detail to the several assignments of error, and without specific discussion of all the propositions urged, we hold that appellant's brief points out no error. While the cattle were not intended to be placed upon the market as soon as they reached their destination, but were shipped there for the purpose of feeding them preparatory to placing them upon the market, we hold that the difference in the market value at Marlin was the correct measure of damages. (Gulf, C. S. F. Ry. Co. v. Stanley, 89 Tex. 44; Gulf, C. S. F. Ry. Co. v. Hume, 6 Texas Civ. App. 657[6 Tex. Civ. App. 657]; s. c. 87 Tex. 219.) However, that question is immaterial in this case, because the testimony shows that the market value of the cattle was the same at Waggoner as at Marlin; and if the appellant is correct in its contention that the difference in the market value at Waggoner is the true measure of damages, the result would be the same.

Notwithstanding the fact that Waggoner was not on the defendant's line of railway, we hold that it was competent for the defendant to bind itself by contract to furnish cars at that place. Waggoner was on the line of another railway with which the defendant's road connected, and over which the cattle were shipped. Such being the conditions, we see no reason why the defendant could not make a valid contract to furnish cars at Waggoner.

We also hold that J. K. Rosson, the defendant's livestock agent, had authority to bind the defendant by contract to furnish cars at Waggoner. He testified that he was the livestock agent of the defendant, and had authority to contract for cars to ship cattle. That testimony showed that he was a general agent, vested with the same authority in that respect as his principal had.

We also hold that there was testimony warranting findings, and we therefore find, that the contract to furnish the cars was made, as alleged; that the defendant breached the contract, and that as a result thereof, and without fault on the plaintiffs' part, their cattle were injured to the extent awarded by the judgment.

No error has been shown, and the judgment is affirmed.

Affirmed.

Writ of error refused.