
    MISSOURI, K. & T. RY. CO. OF TEXAS v. SCHAWE et al.
    (Court of Civil Appeals of Texas. Austin.
    June 12, 1912.
    Rehearing Denied Oct. 23, 1912.)
    Oabbiees (§ 94) — Carriage 0f Goods — Nondelivery — Evidence.
    In an action against a carrier for failure to deliver a car load of goods, evidence held to warrant a finding that the goods had been received, but never delivered by the carrier.
    [E'd. Note. — Por other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.]
    
      Appeal 'from Caldwell County Court; Geo. W. Kyser, Judge.
    Action by C. T. Scbawe and another against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Houston, Boyle, Storey & Davis, of San Antonio, for appellant. E. B. Coopwood and Thos. McNeal, both of Lockhart, for appel-lees.
    
      
      Por other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   JENKINS, J.

C. T. Sehawe brought suit against the Missouri, Kansas & Texas Railway Company, alleging that on October 19, 1903, he delivered to said railway company a car load of cotton seed, to be shipped from Maxwell, Tex., to Houston, Tex., and that the same was never delivered to the consignee, and that he has never been paid for same. Appellant, the railway company, in addition to a general denial, answered that it received for shipment at Maxwell, Tex., one car load of cotton seed, loaded in ear No. 11656, and but one such ear, and that it shipped said numbered car of cotton seed to the San Marcos Oil & Gin Company, and delivered the same to said company as the property of R. Martindale, alleging that if said cotton seed belonged to Sehawe it was entitled to recover the value of the same from Martindale. Appellee Martindale excepted to the answer of appellant, which exceptions need not be here considered; and also alleged that the car load of cotton seed shipped from Maxwell and delivered to San Marcos belonged to him, and that appellant received the same from him on October 19, 1903, to be shipped to the oil mill at San Marcos.

The case was tried before the court, and judgment rendered for appellee Sehawe for $512.90, the value of said cotton seed, with interest from the date of conversion, and in favor of appellee Martindale.

Appellant assigns error upon the findings of fact by the court, but virtually admits that judgment was properly rendered for ap-pellee Sehawe. We quote from appellant’s brief as follows: “While we are of the opinion, as argued by us under the first assignment of error, that the evidence in this case fully sustains the trial court’s finding No. 1 that Missouri, Kansas & Texas car 11656 was loaded on October 19, 1903, by the plaintiff herein (appellee Sehawe) for shipment to Houston for his account,” etc.

We are of the opinion that the evidence not only sustains the judgment of the court-in favor of appellee Sehawe, but it also shows that appellee Martindale shipped a car load of cotton seed from Maxwell, Tex., on October 19, 1903, in a Missouri, Kansas & Texas car numbered 11656; and that said car load of cotton seed delivered to the San Marcos oil mill on the following day was the property of said Martindale.- At least, the evidence is sufficient' to sustain the finding of the court to this effect. Jose Garcia testified that on said day he loaded car No. 11656, Missouri, Kansas & Texas, for said Martindale at his gin near the depot; that when he finished loading said car he went to the depot and told appellant’s agent, Moore, to ship the car to San Marcos; that he returned to the gin, and soon afterwards that he came back to the depot, and that said car was gone. Appellant’s agent, Moore, testified that car No. 11656 was loaded by Mar-tindale October 19, 1903, and on the same day was shipped to San Marcos. T. W. Hoff-heinz testified that he saw Martindale’s Mexican loading the cotton seed October 19, 1903; that he did not see said car shipped out, but that it was not there after the train left.

The argument of appellant is based on the theory that there were not two Missouri, Kansas & Texas cars numbered 11656. No employé of said railroad testified that there were not two cars of that number belonging to said railway company. The proof is conclusive that two car loads of cotton seed were delivered to the appellant at Maxwell on that day. So far as the evidence shows, they may both have been numbered 11656; or the agent may have made a mistake in the number which he placed in Schawe’s waybill, as that is the only evidence as to the number of the Sehawe car. No record of the movement of appellant’s trains was introduced, showing what became of these two cars of cotton seed.

For the reason that the evidence sustains the findings of fact by the trial court and the judgment rendered thereon, said judgment is affirmed.  