
    The Missouri, Kansas & Texas Railway Company v. James K. Gallup.
    No. 14,802.
    (88 Pac. 1134.)
    Error from Labette district court; Thomas J. Flannelly, judge.
    Opinion filed December 8, 1906.
    Affirmed.
    
      John Madden, and W. W. Brown, for plaintiff in error.
    
      A. D. Neale, for defendant in error.
   Per Curiam:

Damages were awarded to Gallup for the negligence of the railway company in failing promptly to deliver cattle shipped from Chetopa to Kansas City. The award was based on the loss of market on the day the cattle should have been delivered and other losses resulting from the delay. The railway company contends that the shipper did not comply with the conditions of the contract under which th'e shipment was made. The contract in this case is substantially the same as' that involved in Railway Co. v. Fry, ante, p. 546. Under the authority of that case Gallup was entitled to recover notwithstanding he had failed to give the notice mentioned in the contract.

Since the written- contract does not apply to the damages awarded, the instruction upon that contract of which complaint is made is immaterial.

The judgment is affirmed.  