Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 21
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1884.] INT. & G. I. Y CO. V. UNDERWOOD. 21
Argument for the appellant.
INT. & G. N. ReY Co. v. N. UNDERWOOD.
(Case No. 5148.)
1. COMMON CARRIER- DAMAGES- WAIVER.- Where a written contract with a
carrier required that the carrier should be notified in writing of the extent
Sf damage sustained by freight, in transitu, before suing therefor, and there
was evidence on the trial tending to show that compliance with this stipulation
was waived by the carrier, whose agent, after examining into the alleged
injury, agreed to pay a fixed sum in satisfaction of such damage, a verdict
against the carrier for such agreed sum was not disturbed.
APPEAL from Bexar. Tried below before the Hon. Geo. E. Noonan.
Suit begun in justice court upon the following account:
Railroad Company Dr. to N. Underwood:
1881. To two mares killed while on the defendant's railroad, valued at
$50 each..................................................... $100 00
Verdict was rendered for the plaintiff for $100. The appellant
removed the case to district court by appeal, where a judgment for
the same amount was rendered against him.
The stock in question was shipped from a point in the state of
Texas to a point without the state, upon a written contract, and the
plaintiff agreed therein, in consideration of a reduced rate of freight,
specified, to give the defendant written notice of his claim for
damages to some officer or agent of the defendant before removing
the stock from the place of delivery, as a condition precedent to the
bringing of any suit for the recovery of damage; the plaintiff did
not give such written notice.
The plaintiff testified that he shipped the horses from San Antonio
to Corinth, Mississippi, and he discovered at Texarkana that the
two mares in question had been injured by getting their legs through
the car. The contract on which they were shipped was put in evidence
by defendant, and contained the clause referred to in the first
assignment of errors, and appellee testifie that no written notice
Appellee testified on re-examination, over defendant's objection,
that he left one injured mare with the station agent at Texarkana,
and it was agreed between them that the damages should be $100;
that he at once notified him of the injury, and the agreement that
the $100 should be paid was made.
liason & Carr, for appellant, cited: Pasch. Dig., art. 452, sec. 1;
I. & T. C. R. R. Co. v. Park, 1 Cond. Rep., §§ 332-335; R. S., art.
278, p. 48; Missouri Pacific R'y Co. v. Harris, Cor. Appeal, April
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/43/: accessed August 18, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .