Heilbroner v. Hancock

Citations

• 33 Tex. 714

Syllabus

<p>1. The allegata and the probata must correspond. A plaintiff should not be allowed to set up one cause of action and prove a different one. No proof should be heard which does not correspond with, the allegations in the pleadings.</p> <p>2. The defendants contracted with the plaintiff that the latter should proceed to the town of M., with his wagons and teams, and should thence transport, at a stipulated rate per hundred pounds, to the town of S., certain goods and merchandise, for which they furnished him an order to their forwarding merchant. The plaintiff proceeded to M. with his wagons and teams, but the shipping merchant furnished him no goods for the defendants, and informed him that the defendants had no goods there, but offered him other goods for transportation at current rates to intermediate points between M. and S. Plaintiff- refused to receive other freight than the goods he had contracted with defendants to haul, and after .returning empty brought this suit against defendants, claiming judgment for the amount of freight money his wagons could have earned at the stipulated rate, if the goods had been furnished. Held, that the suit was not properly brought; the plaintiff’s remedy was not the present suit for enforcement of the contract, but an action for breach of the contract and for the damages consequent thereto by reason of the failure to furnish the freight; and that under such circumstances, by analogy to the maritime law of affreightment, the plaintiff was bound to accept the freight offered him for intermediate points, and to abate pro tanto his demands against the defendants ; and it is immaterial in this respect whether he is or is not a common carrier.</p>