ABFFRE~1 - LEXSEE 1990 Tex. App. LEXIS 2849 A.B.F. FREIGHT...

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LEXSEE 1990 Tex. App. LEXIS 2849 A.B.F. FREIGHT SYSTEMS, INC., Appellant v. AUSTRIAN IMPORT SERVICE, INC., Appellee No. 05-89-01415-CV COURT OF APPEALS OF TEXAS, Fifth District, Dallas 798 S.W.2d 606; 1990 Tex. App. LEXIS 2849 October 3, 1990, Filed SUBSEQUENT HISTORY: [**1] Application for Writ of Error Denied March 6, 1991. PRIOR HISTORY: On Appeal from the 44th Judicial District Court, Dallas County, Texas. Trial Court Cause No. 87-8244-B. DISPOSITION: Reversed and remanded. CASE SUMMARY PROCEDURAL POSTURE: Appellant common carrier challenged a decision from the 44th Judicial District Court, Dallas County (Texas), in favor of appellee consignee in an action by appellee seeking damages arising from a misdelivery of a shipment of clutches, contending the trial court erred in failing to find that appellee's claims were barred by the doctrines of ratification by silence, waiver, or estoppel as a matter of law, and in awarding damages. OVERVIEW: Appellee consignee suffered loss in the form of restocking fees and freight charges when it returned to the supplier repossessed clutches it claimed should not have been delivered by appellant common carrier to a third-party defendant. The trial court rendered judgment for appellee. On appeal, appellant contended that the trial court erred, as a matter of law, by failing to find that appellee ratified the delivery and waived its right to complain to appellant about the misdelivery because appellee waited some seven months to notify appellant. The court found that under provisions of the Interstate Commerce Act, appellee clearly had a period of nine months in which to file a claim against appellant for wrongful delivery. Appellee's legal duty to speak was defined by statute, thus appellee's notice was timely. Appellant further complained of legal insufficiency of the evidence to support the damages award. The court found appellee was required to identify the clutches it returned to the supplier. The court held that the evidence concerning appellee's damages regarding the disputed shipment of clutches was legally insufficient to support the award. The court reversed and remanded. OUTCOME: The court reversed the award of damages below in favor of appellee consignee and against appellant common carrier and remanded the entire cause for a new trial. Appellee's legal duty to speak was defined by statute, appellee's notice was timely, and appellant's argument that it justifiably relied to its detriment upon appellee's silence was without merit. However appellant prevailed on its no evidence point as to damages. CORE CONCEPTS Transportation Law > Carrier Duties & Liabilities > A drop shipment delivery is defined as a shipment of goods directly from the manufacturer to a dealer or consumer rather than first to a wholesaler, though a wholesaler still earns profit because he took the order for the goods. Contracts Law > Remedies > Ratification
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This note was uploaded on 09/30/2011 for the course EMGT 5130 taught by Professor Jeong during the Fall '11 term at UH Clear Lake.

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ABFFRE~1 - LEXSEE 1990 Tex. App. LEXIS 2849 A.B.F. FREIGHT...

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