Wichita Valley Railway Co. v. Nance

TARLTON, Chief Justice.

This appeal is from a judgment recovered by the appellee, as plaintiff, against the appellant, as .defendant, under the provisions of article 4258a of our Revised Statutes, prescribing a penalty for withholding goods after tender of the payment of the freight due thereon as shown by the bill of lading.

The bill of lading pleaded and proved on the trial contained the stipulation that the weights therein named were subject to correction. The defendant denied the correctness of the weight recited in the bill.

Under such conditions, in order to recover the penalty prescribed by the statute, it is incumbent upon the plaintiff to plead and to prove that, the weights stated in the bill of lading are the true weights of the freight in question. Railway v. Looney, 84 Texas, 259 ; Railway v. Nelson, 4 Texas Civ. App., 345. This the record shows the plaintiff failed to do.

We also think that for another reason the petition failed to show liability on the part of the defendant. The appellant, a delivering carrier, is not shown by any allegation of partnership, or by any equivalent averment, to have been bound by the act of the initial carrier, charged to-have executed the bill of lading sued upon. The fact relied upon to show ratification, to-wit, that the defendant received and transported the freight and collected the charges, will not suffice for that purpose. Miller v. Railway, 83 Texas, 518 .

The judgment is reversed and the cause emanded.

Reversed and, remanded'-