CHICAGO, ST. L. & N. O. R. CO. v. PULLMAN SOUTHERN CAR CO., 56 F. 705

McOORMICK,' Circuit Judge. This action was "brought September 20, 1886, by the defendant in error against the plaintiff in error in the circuit court for the eastern district of Louisiana. It' came to trial, and judgment was rendered in favor of defendant in error, and plaintiff in error sued out a writ of error from the supreme court. The case is fully stated in the opinion of that court. 139 U. S. 79, 11 Sup. Ct. Rep. 490 et seq. All the questions then in issue between the parties were discussed and settled in that opinion.

The judgment was reversed,- and the cause remanded for a new trial in conformity with that opinion. On November 28, 1892, the plaintiff below discontinued all that portion of its demand pertaining to the ear "Great Northern,” and limited its demand to the ca,r “Louisiana,” which it alleged was well worth |16,000. On the next day (November 29, 1892) the defendant below specially pleaded the prescription of three years in bar of plaintiff’s action.

The case came on for trial December 2, 1892, and resulted in a verdict and judgment in favor of plaintiff below, and the defendant below sued out a writ of error from this court. Plaintiff in error assigned ten specifications of error, only five of which are discussed in the brief of counsel, and of these we deem it necessary to notice only the first and third. “First.

The court erred in refusing- to deliver the following instruction: ‘The court is requested by defendant’s counsel to instruct the jury as a matter of law that -üie contract sued upon is a contract of letting and hiring, and that the alleged obligation of the defendant to repair or renew the damages to said car “Louisiana,” made necessary by accident or casualty, as set forth in the plaintiff's petition, and as provided in

article seven of said contract sued upon, is a part of the consideration -of said contract, or is an alleged arrearage of the so-called “hire” of said car; and that this suit is a suit to recover an alleged arrearage of the hire of said car “Louisiana,” during the continuance of the contract; and as such the action is barred by the prescription of three years from the time that said alleged hire was due according to the contract, more than three years haying elapsed, as appears upon the face of the plaintiff’s petition, from said time until the bringing of this suit; and that the jury must find a verdict for the defendant.’ ” “Third.

The comí: erred in refusing to deliver the following instruction at the request of counsel for plaintiff in error: ‘The court is requested to instruct the jury that this suit is in form a suit to recover damages for an alleged broach by defendant of the terms of a commutative contract in writing, and that by the law of Louisiana applicable to such cases there must be alleged and proven a regular putting in default by plaintiff of the defendant in order to recover; That unless the jury iind from the evidence that prior to the tiling of this suit, and within a, reasonable time after the occurrence of said tire, the plaintiff made a written demand upon the defendant to repair, renew, or malte good the damages to car “Louisiana,” occasioned by the alleged accident or casualty complained of, or made demand upon the proper officer, namely, the president of said company defendant, in the presence of two witnesses, demanding that said defendant company should repair or renew the damages sustained by the car “Louisiana” by the alleged fire of May 27, 1802, then the jury must find for file defendant.’ ” The circuit court did not err in refusing these charges..

The contract on which this suit is "brought is “that the railway company [plaintiff in error] shall repair all damage to said cars of every ldnd occasioned by accident or casualty during the continuance of this contract, except that the Pullman Company [defendant in error] assumes all responsibility for any loss or damage occurring to said cars arising from defective heating apparatus or lights furnished by it.” The fact that this contract is found in an indenture that does embrace certain contracts of letting and hiring, and certain commutative covenants in writing, does not necessarily invest it with either character, and there is no other feature of this contract, or circumstance connected with it, calculated to give it such a character as would bring the action within the bar of the prescription pleaded.

In reference to the first trial of this case in the circuit court the supreme court said: “There can be no doubt that the railroad company was, under the evidence, liable io the plaintiff oti account of the loss by fire of the ‘Louisiana.’ * * A peremptory instruction to find for the plaintiff in respect to the ‘Louisiana’ would not have been- erroneous.” The ease as to the “Louisiana,” on the second trial, appears to have been substantially identical with the case made as to it on the first trial, and in our view of the case as now presented in the record a peremptory charge to find for the plaintiff the value of the car “Louisiana,” with interest from judicial demand, would not have been erroneous.

The judgment of the circuit court is affirmed.