Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 470
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470 HOUSTON & TEX. C. R. CO. v. HODDE & WERNER. [Term of
Opinion of the Court.
were in the possession of that firm, and the one containing plaintiffs'
cotton was in the possession of G. H. Mensing; that the
car was taken possession of by Mensing and plaintiffs; that
Mensing had charge of the car and cotton at the time; that the
cotton had never been reported to him as being ready for delivery.
He did not consider cars so laden with cotton to be in his
possession until reported to him, an examination made, and
bills of lading signed for the same; that the cotton was taken
possession of by G. H. Mensing and plaintiffs, after the fire.
Another witness for defendant testified, that the paper
shown here in court was the printed tariff of defendant's rates
and charges, and rules for the government of its agents and
the public, which provided that "all cotton, merchandise, or
"other articles offered for shipment, must have the personal
"supervision of the agent or his clerk, in loading and check"ing."
The statement of the evidence shows a conflict of
testimony on the material issue, which was,-Was the cotton
received by, or in effect delivered to the defendant's agent or
clerks for the purpose of being transported to Houston ? The
appellant claims that the second paragraph of the charge took
away from the jury the proper consideration of this issue, and
misled the jury on this, the principal question at issue. The
paragraph complained of is the following: " If the facts satisfy
" the jury that the cotton was actually on the car of defendant's
' company, standing on a side track of defendant, permitted,
"or caused to be run alongside of a private warehouse, stand"ing
by the side track, and that the car had been assigned by
"the agent or servant of defendant, for the purpose of being
"loaded, then defendant's company will be held to have received
"the cotton for shipment, and unless they have delivered it at
" place of destination, the company must respond in damages,
"as stated in charge first." In view of all the evidence, this
portion of the charge was error, it pointed to evidence unquestionable
in the case, about which, on its principal points there
could be no doubt, and made those facts the proof of a delivery
and consequent liability by defendant; there was under
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/478/: accessed July 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .