Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-30

SoEL.lEs anu ludl pldluJlH was
obliged to pay 5000 for extra feed
for the cattle.
Defendant answered, admitting
that the cattle were shipped to plain
tin on the date named, denying that
plaintiff was the shipper, but alleg-
ing that the shipment received by
them for plaintiff was the same ship
ment mentioned in the complaint. 1t
denied all plaintiffs allegations of
negligence, and admitted that the cat
tie were returned to La Grande about
9 o'clock a. m. of March Is. For a
further and separate answer defen-
dant alleged that on March IA, 1908,
a co-partnership firm, doing business
as Davis Brothers, of which c. E. Da-
Wis was one Of the members, entered
into contract in writing with defen-
dant for the transportation of two
car loads of cattle from North Pow
der to Portland by defendant and
that the shipment of cattle, the ex-
act number of which was unknown to
defendant, was the same one men
toned in the complaint; that, in con-
sideration of a rate of transportation
granted by the defendant to the ship
per, governing such shipment, the
shipper and this defendant entered
into a stipulation with respect to the
conditions under which the shipment
should be and was transported by
this defendant. One provision of this
contract is as follows:
unless claims for loss, damage or
detention are presented within 10
days from the date of the unloading
of said stock at destination, and be-
fore said stock has been mingled with
other stock, such claims shall be
deemed to be waived, and the car
riers and each thereof shall be dis
charged from liability. Any carrier
liable on account of loss or damage
to any of said stock, shall have the
benefit of any insurance that may
have been effected %thereupon. The
rules, regulations and conditions pre-
scribed by the carriers for the trans
portation of live stock, as evidenced
by their published tariffs, classified
lions and circulars in force and eff
feet, are binding upon the shipper.
The signing of this contract by the
shipper or his agent shall be con-
elusive and condition thereof by said
shipper"
Defendant alleged that the ship
ment was transported by it without
delay and with due care, but that on
the evening of March 14th, an ex-
traordinary and furious shower arose
which continued all of the next day
washing out a portion of defendants
track near Huron, and that, upon en-
countering the washout, it returned
to La Grande with the train and that
the stock were promptly unloaded
into defendants stock yard, with the
consent of the shippers agent; that
the yard was entirely suitable for
receiving and holding the stock I'M
der all conditions that could be rea-
sonably anticipated by defendant;
and that as soon as the injury to the
road could be repaired defendant
transported the cattle to Portland
where they were unloaded and ac-
cepted by plaintiff, without any COM
plant or objection, on March 10,
1908; and that no claim was made
by plaintiff for damage to the stock
until July 10, 1908.
The evidence does not show any
unnecessary delay by defendant in
transporting the shipment but indi-
Gates that the delay was caused SOLE
ly by the unusual storm and the con
sequent washing out of it's roadway.
There is some evidence tending to
show that c. E. Davis, who was in
charge of the stock for plaintiff and
who accompanied the shipment, left
the cars when they returned to La
Grande and was away when the
stock were being unloaded; that the
corral was muddy and unsheltered
and that some of the Stats on the
feed racks we're broken or absent,
causing waste of food, and that when
he ascertained this he demanded that
the stock be taken back to North
Powder where they could be better
cared for, but that defendants agent
did not comply with this demand.
Plaintiff received the stock in
Portland and slaughtered them with
in a very short time, making no
claim for damages until July 10, 1908.
The evidence tends to show a shrink
age in the weight of the animals,
amounting in all to about $500
pounds. The contract of shipment
was signed Davis Brothers" by c.
p. Davis, and by defendants agent at
North Powder, G. e. Davis accom-
panied the shipment to Portland.
At the conclusion of plaintiffs tes-
timony the defendant moved for a
Judgment of nonsuit which was
granted and plaintiff appeals.
Mcbride, J.. The. Judgment of the
circuit court is correct. The evil
dence shows, without contradiction,
that Davis Brothers were plaintiffs
agents in buying and shipping the
cattle, and their contract was, there
fore, its contract and binding upon
1t: York Company v. Central Rail-
road. 3 Wall. 1O7.
The stipulation that a claim of in
jury shall be presented within 10
days and before the stock shipped
shall have been mingled with other
stock is a reasonable stipulation on
It's face. Transportation companies
can only do business through en-
ployees, and the location of these, as
well as the time of their employment,
is subject to change. 1t is only fair
that' in cases of this character, the
corporation should be ~seasonably no
,ttlled that a claim for damages would
be insisted upon, in order that a
careful inspection of the animals and
timely inquiry into the conditions at
tending their transportation, may be
investigated and the actual facts as
certained.
This Is not a Stimulation evemn+inr