Gulf, Colorado & Santa Fe Railway Co. v. Hume Bros.

BROWN, Associate Justice. Hume Brothers sued the Gulf, Colorado & Santa Fe Railway Company to recover damages for the breach *217 of a verbal contract alleged to have been made by the station agent of the railroad company at Ballinger with the plaintiffs, whereby the railroad company agreed to furnish to plaintiffs cars to ship a large number of cattle on a certain day. It is alleged that plaintiff^, in pursuance of the contract, drove the cattle to Ballinger, and on the day agreed upon were ready to ship them, bnt the railroad company failed to furnish the cars, and did not furnish them for a number of days thereafter, by which Hume Brothers were compelled to hold their cattle at great expense, and that the cattle were by reason of such holding greatly depreciated in value. The railroad company filed a general denial and special pleas, which will be mentioned in the opinion in discussing the questions raised upon them. Upon trial in the District Court judgment was rendered against the railroad company, which was affirmed by the Court of Civil Appeals, and is now before this court on writ of error upon the following objections to the judgment: First. That the District Court erred in sustaining plaintiffs’ exceptions to defendant’s answer setting up the stipulation in the contract of shipment, that suit must be filed and service had of citation within forty days. Second. That the court erred in charging the jury that the railroad company was bound by the contract to furnish cars to plaintiffs at a certain time, if it was made by the station agent of the company; and in refusing special charges asked by defendant; and also in excluding evidence which was offered by defendant to prove that the agent did not have authority to make the contract. Third. In excluding evidence to show that the shipment of cattle at that time was so heavy that the' railroad company had not sufficient cars to supply the demand, for which reason the delay occurred in furnishing cars to plaintiffs. Fourth. Admitting evidence as to effect of the market in the Territory on the market at Ballinger. Fifth. In the charges given on measure of damages, and in refusing to give charges upon same subject requested by the defendant. The defendant pleaded, that for a valuable consideration there was inserted in the shipping contract a clause by which it was agreed between it and plaintiffs that, for the recovery of damages in certain cases, including the character of plaintiffs’ claim, no suit should be maintained in any court unless it was instituted and service of citation had within forty days after the damages accrued. Plaintiffs excepted to this part of the answer, and the District Court sustained the exception, which is assigned as error. Two questions arise upon this assignment: 1. Was the stipulation unlawful in whole or in part? *218 2. If unlawful in part only, does the unlawful part render the clause void as a whole? It was lawful for the defendant by agreement with plaintiffs to fix a reasonable time, shorter than that allowed by law, within which suit must be filed. Railway v. Trawick, 80 Texas, 270. Forty days has been held to be reasonable under the facts of the cases in which the question arose. The reasonableness of the time fixed is generally a question of fact to be determined by the jury. The requirement that service of citation must be made within a given time rests upon a different ground. It is not a question whether or not the time agreed upon is reasonable; but is it a subject about which the parties could contract? Upon the filing of a petition, it is the duty of the clerk to forthwith issue the citation, and the duty of the officer, to whom it is delivered is to serve it without delay. Rev. Stats., arts. 1213, 1218. When the plaintiff delivers his petition to the clerk he has no further legal control over the action of the officers. The law secures to the plaintiff and defendant the benefit of vigilance in serving the citation. It is not an act to be performed by the plaintiff, or by any one under his direction or control. We have found no case involving this question. The general rule, however, is settled by the authorities that an officer can not contract to receive compensation for services in addition to those prescribed by law. Ueither can he bind himself to accept less than the law allows him, nor to waive the remedy for collection provided by law. Meech. Pub. Officers, secs. 374, 376, 378. This is placed upon the ground that, the compensation being prescribed by law, it is against public policy that it should be the subject of contract between the officer and litigants. The duties of public officers in issuing and serving citations are prescribed by law, and it would seem that for the same reason any contract between third parties which would involve any interference with the regular discharge of those duties, or that would impose liability for a failure of an officer to discharge them with vigilance, would be equally against public policy and void. The part of the stipulation requiring service of citation to be made within forty days was void. When one for a legal and valuable consideration agrees, to perform two acts which are severable, one of which is lawful and the other unlawful, the contract may be enforced as to that for which it was lawful to contract, and held void as to the other. But when the two things to be done are so blended that they can not be separated, one lawful and the other not, the whole contract is void. Ohio v. Board of Ed., 35 Ohio St., 519; Gelpcke v. Dubuque, 1 Wall., 221; Presburry v. Fisher, 18 Mo., 50; United States v. Bradley, 10 Pet., 343; Hynds v. Hays, 25 Ind., 31. One period of time.is by this agreement designated within which two things are to be done;, no part of that time can be *219 specified as that within which suit might he filed, and the limitation of the right of recovery avoided, without performing the other act of serving citation. It is apparent, therefore, that these acts are so blended that they can not be separated, and the entire clause is rendered nugatory by including that which it was not lawful to embrace in the agreement. The District Court gave to the jury the following charge, which is assigned as error: “Ton are charged, that a contract made by defendant’s local agent or station master to furnish a given number of cars at a specified time would be binding upon the defendant, for a breach of which it would be liable in damages, and also that the defendant would be bound by representation and promises made by its station agent to furnish such cars from time to time.” It is claimed that if the agent of the defendant at Ballinger had no authority to make the contract to furnish cars within a given time, but was in fact prohibited from so doing, the plaintiffs can not recover, although they did not know of the limitation placed upon his authority. An act done within the scope of the apparent authority of an agent will bind the principal, although the agent may by doing that act violate his instructions, if the party with whom he deals has no notice of the limitation placed upon his power. Merriman v. Fulton, 29 Texas, 98. It is well settled in this State, that a station agent of a railroad company can bind it by a verbal contract to furnish cars at a given time, for the shipment of freight, unless the shipper knows that the agent has no such authority. Easton v. Dudley, 78 Texas, 236; McCarty v. Railway, 79 Texas, 37. There was no evidence introduced or offered which tended to charge plaintiffs with notice that the station agent was not authorized to make the contract, and the court did not err in the charge given, or in refusing the special charges asked upon that point. Plaintiffs were not in a position to be chargeable with notice of the rules and regulations of the railroad company, nor was there any evidence to show that they, or their agent Day, had notice of any fact that would put a prudent man on inquiry as to the agent’s authority. The printing of the rule upon this subject on the contracts could not be notice, for the reason that such contracts in the natural course of things would not be known to the shipper until after the contract for cars had been made. There was no error in excluding the evidence offered to show that the agent had no authority to make the contract. If the agent of the railroad company made a contract with plaintiffs or their agent to furnish cars at a given time to transport the cattle, then the fact that the shipment of cattle over the line of the railroad at that time was so great that it did not have cars sufficient to enable *220 it to furnish the cars contracted for would constitute no defense to the action for the breach of that contract, and the court did not err in excluding evidence upon that point, nor in refusing instructions presenting that defense. The court below permitted the following question and answer to go to the jury: “Question: What effect would the fall and summer market in the Territory have upon the market value of the cattle at Ballinger at the time they were shipped?” “Answer: It would have a good deal to do with the market value of the cattle here. After a certain time in the spring the buyers here of cattle for shipment to the Territory to be pastured would be gone.” How the absence of buyers from Ballinger could have been foreseen by the railway company, or how it could have affected the value of plaintiffs’ cattle in the spring, before the time when the summer or fall market in the Territory could possibly be known, we can not see. So far as the facts and pleadings disclose the relation of this fact to the issue then being tried, it appears to have been wholly irrelevant, and should have been excluded; but it is not apparent that defendant was injured thereby, and the case would not be reversed for that error. . On the measure of damages, the court explained to the jury the law as the judge understood it to be applicable to the facts, and continued in this language: “From the foregoing, you will observe that the things for you to consider and find from the evidence are: first, was there a contract as alleged between the plaintiffs and the defendant; second, would plaintiffs have been ready and willing to comply with their part of said contract but for the default of defendant; third, was said contract violated by defendant; fourth, if so, did the plaintiffs, while awaiting the shipment of said cattle, do with them what was reasonable under the cir cumstances; fifth, if so, did they incur any expense while so doing in the hiring of hands and providing food for said cattle; sixth, if so, how much for said hands, and what was the value of the food fed the cattle, or grass consumed by them (in passing on the two preceding-clauses you will keep in mind what is stated in the fourth clause, that is, was what plaintiffs did in the premises reasonable under the circumstances, and as applied particularly to the last two clauses, was the amount that they paid out for hands reasonable and necessary, was the manner of their holding said cattle reasonable, and what was the value of the grass so consumed by said cattle); seventh, what was the deterioration, if any, in the value of said cattle at Ballinger at the time of their shipment by reason of the length of time that they had been held, and the manner in which they had been held, pastured, herded, and driven.” *221 • Plaintiff in error assigns as error the giving .of this charge, claiming that the diminution in value, of the cattle caused by the delay in furnishing cars is not the proper measure of damages, because the cattle were not intended for sale at the time. In cases where the cattle were to be shipped to market for immediate sale, courts have held that the decline in the market value or the decrease in value for other reasons caused by the negligence of the carrier, is a proper measure of damages; but this does not prove that the same rule does not apply in other cases. Compensation for. the injury sustained is the object of the law in giving damages. There is no fixed rule, but having this fundamental principle in view, courts apply it to the particular case so as to ascertain with the greatest certainty what the injury is, and thus to make whole the damage done. If plaintiff intended to pasture his cattle, he was entitled to have the full benefit ox their condition as it was when they should have been shipped, and it is not necessary that property should be upon the market for sale in order to entitle the owner to have its impaired value restored by the person causing the injury. The rule that counsel for plaintiff in error claims, would require the owner to wait until his cattle had been pastured or fed sufficiently to restore their value as it was, before he could sue, or to make the uncertain and speculative matter of future cost of feed and care with its uncertain results a rule to ascertain the amount to be paid, whereas the plaintiff was entitled to have the railroad company make them whole at once, and without delay. The court, however, submitted to the jury the cost of hands hired and feed consumed by the cattle during the time they were delayed. In this case, when the. object was to keep the cattle after getting them to the place of delivery, the presumption would be reasonable that it would be necessary to have them cared for by hands employed, and in the nature of things the cattle, whether in Texas or the Indian Territory, must eat grass or other food. So that plaintiffs must have been at some expense in these particulars during the time the delay kept the cattle in Texas longer than if the cars had been promptly furnished, and the damages in this particular would be the difference between the expense of caring for and feeding the cattle during the time that they were kept at Ballinger on account of the delay in furnishing cars and the amount it would have cost to provide hands and food for the same time at the place of destination. It was error to charge the jury to find for plaintiffs the entire cost of hands employed and feed furnished while delayed at Ballinger, for which error the judgments of the District Court and the Court of Civil Appeals are reversed, and the cause is remanded to the District Court for further trial in accordance with this opinion. Reversed and remanded. Delivered June 14, 1894. *222 O. H. Jenkins, O. H. Willingham, and West & Cochran, for defendants in error, filed a motion for rehearing. J. W, Terry, for plaintiff in error, also urged a motion for rehearing, complaining of the matters in the decision adverse to appellant. Both motions were overruled at the next term of the Supreme Court.