Hess v. Missouri Pacific Railway Co.

Hill, J. Plaintiff had judgment against the defendant in the circuit court for the sum of nine hundred dollars, as damages for delay in transporting some seventy-three head of cattle from Lincoln, Missouri,' to St. Louis, Missouri. Plaintiff claims that the defendant received said cattle on January 14, 1885, and agreed to carry and deliver the same at St. Louis on the morning of the fifteenth of January ; but that said cattle were not delivered at St. Louis till the evening of the seventeenth, and, on account of such delay, the cattle lost much in weight, and, .besides, they were cast upon a much lower market than if carried through as agreed. I. In addition to a general denial, the answer sets out the terms of a written, or printed, contract of shipment, made and signed by the plaintiff, the portion thereof relied on in defense being that, in case of damage in transportation, etc., that the plaintiff would, within twenty-four hours after arriving at the point of destination, give notice thereof in writing, verified by affidavit, to some general officer of the defendant, or its nearest station agent. And defendant alleges that no such notice was given. At the trial of the cause, the plaintiff identified a letter as written and signed by Mulhall & Co. at St. Louis, and directed to the defendant. Without comment here on the contents of this letter, we think it, in matter of substance, sufficient notice of plaintiff’s claim for damages. It appears to have been written [206] by Mulhall & Co. (plaintiff’s commission agents) at plaintiff’s request; that Mulhall and plaintiff, within the twenty-four hours, took said letter and delivered the same to the general freight agent at St. Louis, who received the same, made no objection thereto, either as to form or substance, and promised plaintiff in due time to look up the matter and adjust the claim. This was a waiver of the requirement that the notice should be sworn to. Rice v. Railroad, 63 Mo. 315; Gale v. Ins. Co., 33 Mo. App. 664; Breckenridge v. Ins. Co., 87 Mo. 63. We give it as our opinion, then, that the notice, being at the time satisfactory (at least not objected to), it is too late at the trial to raise such objections thereto as here insisted on. II. The next point, however, as contained in brief of defendant’s counsel, is well taken, and must result in a reversal of the judgment herein. The plaintiff offered, and the court admitted, over defendant’s objection, the account of sales rendered to plaintiff by Mulhall & Co., commission men at St. Louis. This action of the court was clearly erroneous. It was the most obvious hearsay. It amounted to nothing more than a report, in writing, from plaintiff’s agents, Mulhall & Co., to the effect that they sold the damaged cattle on the St. Louis market at the prices there named; that said cattle weighed as there stated, etc. Such a paper was incompetent as proof of such facts, and should have been rejected. Nothing short of the deposition, or evidence in open court, of some one connected with said business could be admitted to prove the matters contained in' this statement of account. Hoskins v. Railroad, 19 Mo. App. 315. This error concerned, too, a vital question in this case, and is such as cannot be passed over as immaterial. The result follows, that the judgment of the Pettis circuit court must be reversed, and the cause remanded for a new trial. It is so ordered. All concur.