
    OUTLAND v. RAILROAD CO.
    (Filed March 8, 1904).
    1. CONTRACTS — Carriers.
    The correspondence set out in the opinion constitutes a contract of a carrier to furnish cars to transport freight.
    2. CONTRACTS — Carriers—Agency-—Railroads.
    The general freight agent of a division of a railroad has authority to contract to furnish cars for moving freight.
    3. CONTRACTS — Carriers—Reasonable Time — Questions for Court.
    
    Whether a railroad company furnished cars to transport freight within a reasonable time is a question of law, and a failure to tender them for seventy-five or eighty days was not within a reasonable time.
    4. CONTRACTS — Carriers.
    
      A railroad company is not relieved of liability for breach of its contract to furnish cars to transport freight because it used reasonable effort to procure foreign cars.
    5. CONTRACTS — Carriers—IVotiee.
    A railroad company, after a breach of its contract to furnish cars to transport a certain amount of timber cut and to be cut, is liable for damages for timber cut before the contract and that cut after notice that carrier could not furnish cars.
    AotioN by W. F. Outland against the Seaboard Air line Railway Company and others, heard by Judge Frederick Moore and a jury, at March Term, 1903, of the Superior Court of NoRthampton County..
    From a judgment for the plaintiff the defendant appealed.
    
      Peebles & Harris, for the plaintiff.
    
      Day & Bell, T. W. Mason and Murray Allen, for the defendant.
   MoNtgomeRt, J.

This action was brought by the plaintiff to recover damages for an alleged breach of a contract which was made between the plaintiff and .the defendant in November, 1901. The contract is in writing, and is embraced in a written correspondence between the plaintiff and the agents of the defendant. On October 22, 1901, the plaintiff wrote to O. R. Capps, the general freight agent of the first division of the defendant’s road, at Portsmouth, Va., and also on October 31, 1901, to C. H. Hix, division superintendent, in the same words, as follows: “Hear sir I am cutting and expect to cut fifty car loads of mining props, twenty-seven feet long, near Roxobel, N. O. There is absolutely no accommodation for loading the same at Rox-obel siding as it is all taken up with cordwood, Brown and Bundy’s place where they have to pile their lumber prior to shipping and O. T. Harrell’s gin house and site. Also S. T. Hedgepeth tells me that he has fifty or sixty thousánd feet, which he expects to begin to cut and load now soon at Roxobel if he has not already started, and further were it possible for me to load at Roxobel your company has not any place for me to drop the props on prior to loading, and Liverman, the party who owns the land adjoining the depot, will not allow any one to drop props on his premises without .paying him one cent per log for use of same, which charges I am not willing to pay. Consequently, under the many existing circumstances, I respectfully ask you to grant me train to load my props on the main line. I think that there is no doubt but what I could load a train in one day.”

The letter to Hix was sent by him to Capps, and on November 18, 1901, Capps wrote to the plaintiff at Woodland in Bertie County, N. 0., along the line of the Eirst Division of the defendant company, a letter in the following words: “Hear Sir: — Referring to your letter of October 31st, to Mr. Hix, we have considered your application to be permitted to load a train of mine props on the main line near Roxobel, N. O., and are prepared to permit this, subject to the rules governing the loading of cordwood on the main line, with which you are familiar. These rules of course provide that you will be allowed from sunrise to sunset for loading, and that the special train must make way at all times for other trains. The rates to be charged you will be the full local rates from Roxobel to destination. Please let us know when you desire a train, and we will take up with Superintendent Hix the question of when it can be furnished.”

There was evidence tending to show that before November 18, 1901, the date of the contract, the plaintiff had already cut a large number of the mine props, and that after November 22, 1901, when Capps notified the plaintiff that he feared he would be unable to furnish him the train if the props were to be shipped to some point in Pennsylvania or beyond the defendant’s line, the plaintiff' cut other props. There was further evidence that the plaintiff hauled a large number of the props to the defendant’s railroad, and was ready and able to load as many as 350,000' feet. The defendant did not offer to furnish the cars or a train until about the last of February, 1902, when the plaintiff refused to use them.

The chief contention in the case of the defendant is that there was no contract between the plaintiff and the defendant to furnish cars for the transportation of the props, for that the letter from Capps to the plaintiff of November 18, upon its face, was but a conditional contract dependent upon the ratification or approval by Hix, the division superintendent, and that the condition is found in the last three lines of the letter, which is in these words: “Please let me know when you desire a train, and we will take up with Superintendent Plix the question when it can be furnished.” It is clear to us that the letter of November 18th, in its entirety, read in connection with the plaintiff’s letter of November 22d to Capps, furnishes an unconditional and a complete contract to furnish the plaintiff with the cars to transport the props. The day when Hix, the division superintendent, should send the cars to the place of shipment was a mere matter of detail, and in law to be done within a reasonable time after the plaintiff should make known his readiness for the cars.

Blit the defendant insists further that if the contract was a complete one, the general freight agent, Capps, had no power or authority to bind the defendant by his act. The defendant introduced two' witnesses who testified that the power to make contracts for furnishing trains on the first Division actually reposed in Hix. Capps had no such power. We think that that testimony, in a case like this, is in effect a conclusion of law on the part of the witnesses, and that it was not a correct conclusion. The defendant held Capps out as its general freight agent of its first division, and that designation carries with it, in law, the power to do all acts connected with the handling of freight and fixing special rates, the furnishing of trains for the movement of freight under special contract and all matters pertaining to the subject of freights, which the company itself could do. It could not be that Hix, the superintendent of transportation, could have the power to decline to' furnish cars to a customer at certain times and places, in cases where the general freight agent had made especial contract with customers to furnish them. But if that were not so the contract is a complete one, because Hix sent the plaintiff’s letter in reference to the transportation of these props to Capps, and Capps, after that time, in his letter to the plaintiff, stated that he had knowledge of the plaintiff’s letter to Hix, “and that we have considered your application to be permitted to- load tbe train of mine props on tbe main line near Roxobel, and are prepared to permit this, subject,” etc. So tbe correspondence discloses tbe joint consideration of tbis contract by both Oapps and Hix, even if Hix’s approval is necessary. His Honor was therefore right when be refused to charge tbe jury, at tbe request of tbe defendant, that there was no contract between tbe plaintiff and tbe defendant in respect to furnishing tbe cars; and also in bis refusal to instruct tbe jury “that if they believed tbe evidence that Oapps, tbe general freight agent, bad no authority to make a contract.”

Tbe next in importance of tbe defendant’s contentions is that the evidence on tbe fourth issue did not warrant bis Honor in instructing tbe jury that if they believed tbe evidence they should answer the issue in tbe affirmative. Tbe language of tbe fourth issue was as follows: “Did tbe defendant, on or about November 18, 1901, contract and agree with tbe plaintiff to- furnish tbe plaintiff with trains of cars upon which to load mine props and to allow him to load tbe same at bis log-yard on tbe main line of tbe defendant’s road, as alleged in tbe second clause of action stated in tbe complaint?” Tbe allegation on that subject in tbe complaint was that the defendant was to furnish tbe plaintiff, at such, time as be might need tbe same, trains of cars upon which to load tbe mine props. Tbe contract, as we have seen, in its entirety, was based upon tbe letter of tbe plaintiff to Oapps and Hix, which is set out above. In those letters tbe plaintiff said be was cutting and expected to- cut fifty car loads of props, and asked tbe defendant “to grant me train to load my props on tbe main line.” Tbe letter of Oapps of November 18th refers to tbe letter from tbe plaintiff to him, and in that letter Oapps writes of furnishing a train (italics ours). That is tbe ground on which tbe defendant rests his contention that the evidence did not fit the- issue. His Honor no doubt considered tliat tbe defendant bad notice that tbe plaintiff would require accommodations in tbe way of train service to transport the fifty ear loads of props mentioned in tbe contract, and he instructed tbe jury upon tbe evidence (tbe contract) that they should allow tbe plaintiff such damages as be sustained by reason of tbe failure of tbe defendant to furnish tbe plaintiff trains of cars (italics ours) a,t bis log-yard on tbe defendant’s main line sufficient to transport fifty car loads of mine props within a reasonable time. We think the construction bis Honor put upon tbe contract was a correct one, and that being so no fault can be found with tbe instruction which be gave.

But the defendant further says that it nowhere appears in tbe evidence that tbe cars were to be furnished at such time as be (tbe plaintiff) might need tbe same, as was declared in tbe complaint. That is true, but tbe charge was not harmful, because bis Honor said that the defendant was required to furnish the cars within a reasonable time. On' tbe question of tbe reasonableness of time within which tbe defendant was to have furnished tbe cars, raised by the fifth issue, bis Honor told tbe jury that if they believed the evidence they should say that tbe defendant bad failed to perform its part of the contract within a reasonable time. His Honor then decided that that question was a question of law, and in that view we concur. “What is a reasonable time within which a contract must be performed is a matter of law for the Court, when it depends upon tbe construction of a contract in writing or upon undisputed extrinsic facts.” 9 Cye., 615, and cases there cited. Seventy-five or eighty days bad passed between the date of the contract and the time when the defendant tendered the cars. That in law was an unreasonable delay and is not palliated by the fact that the defendant used reasonable efforts to procure foreign cars upon which the props might be loaded. That was a matter which the defendant should have looked to before making the contract.

The defendant further contends that the plaintiff ought not'to recover damages for any loss he may have sustained by reason of the defendant’s not having furnished cars to ship such props as were out by the plaintiff before the contract was made. There is no force in that contention, for the defendant knew from the letters of the plaintiff that a large number of props had been cut before the day of the date of the contract, and that he wanted to- ship them. The agreement to pay the freight for such shipment was a sufficient consideration to support the contract.

Then again the defendant insists that such props as were cut after the defendant had said that it might not be able to furnish the cars, could not be made the subject of damages. The contract being a valid one, as we have said, the plaintiff had a right to proceed under it, and it was not in the power of the defendant to put an end to its obligation to perform its part of the contract simply because it could not carry it out. If that were the law, no person who may have been aggrieved by a breach of contract could have redress against one who had violated his part of it because he could not specifically perform what he had agreed to do.

Bhit the defendant says that the plaintiff should have stopped his operations when he found that the defendant could not furnish cars to transport the props to Northern points. Under the contract there was nothing said about the point of destination of the shipment of the props, and it was the defendant’s duty to- have furnished the cars and to have transported the props to any point on its own line.

The question of the measure of damages does not arise, for it was agreed on both sides that if the plaintiff was entitled to recover anything he was entitled to recover $2 per thousand feet, or a total of $350-, and the sixth issue was answered accordingly.

Upon a full examination of the case we are satisfied that there is

No Error.  