
    R. W. WILLIAMSON & CO. v. TEXAS & P. RY. CO.
    (No. 2333.)
    (Supreme Court of Texas.
    May 6, 1914.)
    Limitation or Actions (§ 21) — Destruction or FREIGHT — ACTION AGAINST CARRIER.
    An action for the value of 30 bales of cotton delivered to defendant with other cotton for shipment is one for breach of contract, where based upon a bill of lading covering the whole shipment, though plaintiff was advised, shortly after the delivery of the rest, that defendant’s failure to deliver the 30 bales was due to their destruction by fire; and hence the action is not barred by the two-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 90-99; Dec. Dig. § 21.]
    
      Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by R. W. Williamson & Co. against the Texas & Pacific Railway Company. A judgment for defendant was affirmed by the Court of Civil Appeals (138 S. W. 807), and plaintiff brings error.
    Reversed and remanded.
    D. A. Eldridge, of Dallas, for plaintiff in error. T. B. McCormick and T. D. Gresham, both of Dallas, for defendant in error.
    
      
      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   ¡PHIDLIPS, J.

The suit was for the recovery of the value of 30 bales of cotton, based upon a bill of lading, issued by the defendant in error to W. A. Arthur & Co., and by that firm for a valuable consideration indorsed to the plaintiffs in error, for the transportation from Detroit, Tex., and delivery at Diverpool, England, of 104 bales of cotton, the shipment to be over the line of defendant in error from Detroit to New Orleans, La., and via the Leyland Steamship Line from New Orleans to Liverpool. While the cotton was in the possession of the defendant in error, and in the course of the transportation from Detroit to New Orleans, 30 bales were destroyed by fire. The remaining 74 bales were duly delivered at New Orleans to the steamship line, which at the time issued to the plaintiffs in error, the then holders of the original bill of lading and owners of the cotton, its marine bill of lading for their transportation to Liverpool, this part of the original shipment being thereafter duly delivered at Liverpool, whereupon both bills of lading were surrendered, with a notation made upon the original bill of lading of the defendant in error indicating the delivery to the steamship line of only 74 bales of the original shipment. It was found by the honorable Court of Civil Appeals that the plaintiffs had notice of there being a shortage of 30 bales in the shipment at the time of the delivery of the cotton to the steamship line at New Orleans, that the consignee of the cotton had notice to the same effect when the bills of lading were surrendered at Liverpool, but that plaintiffs in error had no actual knowledge of the destruction by fire of the 30 bales in question while in transit to New Orleans, until a later time.

The suit was filed more than two years after the destruction of the 30 bales, and after the plaintiffs in error acquired actual knowledge of that fact, but within four years from the date they acquired such knowledge, and that accordingly the cotton could not and would not be delivered in compliance with the obligation of the bill of lading. The trial court sustained the plea of limitation interposed by the defendant in error upon the view that the two-year statute of limitation applied to the action. The honorable Court of Civil Appeals affirmed the judgment upon the same ground.

As determined by the allegations of the petition the suit was clearly one for the breach of the contract of the defendant in error as evidenced by its bill of lading, by which it became obligated to make delivery of the full number of bales constituting the shipment; and the character of the action was not changed, we think, to that of conversion by the facts we have recited in respect to the plaintiffs in error having notice of the shortage in the shipment when it reached New Orleans, and, becoming advised, shortly after the delivery of the 74 bales at Liverpool, that the failure to make delivery of the 30 bales was due to their destruction by fire, to which the Court of Civil Appeals attached importance in its decision of the case. The question is controlled by the holding announced by this court in the case of Elder Dempster & Co. v. Railway Co., 105 Tex. 628, 154 S. W. 975, decided since the decision of the ease by the Court of Civil Appeals, to the effect that in suits of this character the two-year statute of limitation is inapplicable.

The judgments of the district court and the Court of Civil Appeals are accordingly reversed, and the cause is remanded to the district court for further trial.

Reversed- and remanded.  