Williams v. O'Daniels

Citations

• 35 Tex. 542

Syllabus

<p>For a stipulated compensation the defendant agreed in April, I860, to furnish a driver for plaintiff’s wagon and team, and to accompany and superintend the same while conveying plaintiff’s cotton to market, and to sell and dispose of it for the plaintiff. The market then contemplated was Brownsville or Eagle Pass, but the evidence shows that defendant had full discretion as to the place of market. Having reached San Antonio, the defendant, on the thirtieth of April, 1865, •delivered the cotton to forwarding merchants there, to be shipped to their house at Eagle Pass. The merchants were then in good credit and standing, but shortly afterwards failed, and the cotton having Leen sent on to Monterey, Mexico, was there seized by their creditors, and no proceeds ever reached the plaintiff. The plaintiff now sues •the defendant as a common carrier, for the value of the cotton. Held, that the undertaking of the defendant was neither that of a common nor a private carrier; that he was merely the agent of the plaintiff, and the court below correctly instructed the jury that, “if in the exercise of a sound discretion, defendant used such diligence and care as a prudent man would have used with his own cotton, then he would not be liable for its subsequent loss.”</p>