Nashville, Chattanooga & St. Louis Railway v. Smith

DOWDELL, J. — The first assignment of error is based upon the refusal of the trial court on motion of the defendant to strike the complaint filed in the circuit court. Rulings on motions to strike from the file pleadings will be reviewed on appeal only when properly presented by bill of exceptions. ’ There is nothing contained in the bill of exceptions relative to the court’s ruling on the motion to strike. The testimony of the plaintiff which was taken on interrogatories at the instance of defendant under the statute, Art. 4, Ch. 46, p. 582 Code of 1896, was offered and introduced in evidence by plaintiff without objection on the part of the defendant, and objection raised for the first time on appeal will not be considered. It was conceded that the defendant railroad company delivered Height to the Tenn. Transportation Co. for delivery at certain landings on the Tennessee River, but not at the landings where the goods in question were to be delivered, but this was not made known to the plaintiff and he had no knowledge of any such limitations as to the landings in the shipment of freight by the defendant, when he made the verbal agreement with the agent of the defendant company. Whether the agent had authority to make the contract or not with plaintiff, becomes immaterial in view of the fact that the defendant company undertook to carry out the same, and the loss to the plaintiff resulting from such a negligent performance of the countract as amounted to a breach of the same. While the action is in assump-sit on the contract, still, on the undisputed evidence here, the result would be the saane if the action had been in case. As was said in Melbourne & Troy v. L. & N. R. R. Co., 88 Ala. 449, and the principle is applicable here: “It is familiar law, that when one un [437] dertakes gratuitously to perform some act with respect to the property of another, he is not hound to do it; but, if the act is performed, it must be done with some degree of care, and. the mandatory will be held responsible for any injury and loss that may result from a want of due care in the manner of his performance.—Story on Bailments, §§ -165-174, 175. We‘find no error in the record, and the judgment is affirmed.