Pensacola & Atlantic Railroad v. Braxton

Citations

• 34 Fla. 471

Syllabus

<p>CATTLE KILLED BY RAILROADS — WHEN STATUTORY INTEREST AND ATTORNEYS’ FEES RECOVERABLE — WHEN NOTICE TO PRODUCE INSTRUMENT NECESSARY AS PREDICATE TO SECONDARY PROOF THEREOF' —PAYMENT MADE BY MISTAKE, WHEN RECOVERABLE.</p> <p>1. The purpose of section 3 of Chapter 3743 laws, approved May 13th, 1887, making provision for the recovery of damages-for cattle killed by railroad companies in oases where they have failed to keep their roadways fenced and supplied with, cattle-guards, and for the recovery of interest on the damages-at the rate of fifty per cent, per annum, and attorney’s fees,, in requiring the plaintiff to give a -written notice of his claim, prior to the commencement of suit, is to afford the defendant, company an opportunity to investigate the justness of the-claim, and to permit it, without litigation, either to pay it in full as presented, or to make tender of, or an offer to pay, such, an amount'thereof as it deems to be just and reasonable. If,, after such tender or offer to pay, the plaintiff sues and recovers no more damages than he was tendered or offered before suit, then he can not recover either the special statutory interest, nor any attorney’s fee, nor any costs; but, on the contrary, in such a case, the defendant is entitled to judgment in its favor for all of its reasonable costs, to be deducted, from the amount of damages found for the plaintiff.</p> <p>3. In order to relieve itself of the liability to a recovery of the-special statutory interest, and of attorney’s fees, and of the-costs of suit in such cases, the defendant company must-have, before suit brought, made a tender or offer of payment to the plaintiff of some amount in settlement of his claim as-presented in the written notice thereof, and the amount thus tendered or offered must be nothing less than the amount after-wards awarded by the judge or jury as the damage actually sustained. If the plaintiff at the trial recoyers any greater amount as his damages than was offered or t