The times. [volume] (Richmond, Va.) 1890-1903, 1900-03-23

error. These cars were agencies or means
employed by the plaintiff in error for
carrying on its business and performing
its duty to the public as a common car
rier, one of which was to provide suitable
cars for the safe and expeditions carriage
and preservation of the freight 1t under
took to handle. A railway company can
not escape responsibility for its failure to
provide cars reasonably fit for the con-
veyance Of the particular class of goods
it undertakes to carry by alleging that
the cars used for the purposes of its own
transit were property of another. The I'M
dertakikng of the plaintiff in error was to
properly care for and safely carry the
fruit of the defendant in error, and it is
mmaterial that the cars in which it was
carried were owned by the California
Fruit Transportation Company or that
said company undertook to ice said cars
or to pay for the ice
AS between the plaintiff in error and the
defendant in error, the California Fruit
transportation Company were the agents
OF the plaintiff in error. So far as the
defendant in error was concerned the
plalntl1f in error was under the same
obligations to, care for the fruit that it
would have been had the refrigera tor
cars belonged to it."
judgment of lower court is affirmed.
DECLARATION IN ASSUN1PSIT.
southern Railway Company VS.. Wilcox
aio De5aruette. Opinion by Judge
Cardwell. Appealed from the Law ami
Chancery Cnurt of Norfolk.
The defendants in error, f. E. sWillcox
and K. p. Dejarnette, brought an ac-
ton of trespass on the case in assumpsit
and obtained a judgment against the
plaintiff in error, the Southern Railway
Company, for the sum of S1.74IS7. with
interest from October 10, 1895, on the
ground that the plaintiff in error I'M
5dertook, promised and agreed with de-
PENDANTS in error to transport and CON
vey from Mt. Pleasant, Tenn. to
Raleigh, N. C., 5000 tons ofSphos phate
rock at the rate of 1881 per ton of 2,24o
pounds, and thereafter charged and ex-
acted freight thereon, or did except a
small part thereof, at the rate of 1851
per ton of 1000 pounds
1t was conceded that the defendants in
error could recover in this action only
on the special count in their declaration,
which covered the incidents above set
forth. but failed to allege any UNDER
taking, pr omise or agreement upon the
part of the plaintiffs defendants IN
error) as considera ton binding upon
them at the time the defendants
promise, sued on, was made.
The declaration was demurred to as
being defective i'm this particular, but
the trial court overruled the demurrer,
and a verdict was rendered for, the de-
PENDANTS in error.
1t was commended on appeal, however.
for the defendants in error that though
under technical rules of pleading the
declaration was detective. under sec
ton 3246 of the Code. the defect cannot
be taken advantage of.
Section S246 provides that no action
shall abate for want OF form, where
the declaration sets forth sufficient mat
ter Of substance for the court to pro-
coed upon the merits OF. the case.
This section was held Ito have no APP
plication in this case, and that where
there has been a demurrer$to any plead
ing and the same has been overruled,
the statute cures no defect, imperfec-
ton or omission therein, except such as
could not be regarded on demurrer
Minor, OIL.
without passing upon any other ques-
ton arising in the case, 1t was declared
by the Court of Appeals that the court
below erred in overruHng the demurrer
to the declaration, and Its Judgment was
reversed. the demurrer sustained, the
verdict Of the jury set aside. and the
case remanded with leave to defend
ants On error to amend their declaration,
If they may be so advised. -
s3S5S MOTION TO DISMISS APPEAL. 81
Thomas vs.. Jones. Opinion BY Judge
Keith, r.
This case was heard In The supreme