Page:Federal Reporter, 1st Series, Volume 4.djvu/184

170 may be ground for remanding; otherwise we must retain the case here. I do not Bee that any order is to be made here; we take no notice whatever of the petition.

Ormsby V. Union Pacific Ry. Co.

(Circuit Court, D. Colorado. October 13, 1880.)

1. Demurrer — Pleading. — A demurrer "to so much of the answer as sets up the special contract" will not be received by the court. 2. Railroad — CONTRACT — Reasonableness. — A contract between a �railroad company and a shipper of horses stipulated that for in- juries to the animais shipped over the line of the road the owner should make a demand in wrlting of the agçnt of the company before removing them from the place of destination, or from the place of delivery. �H eld, that this clause of the contract was not applicable where the injury was the lllness of the animais, and the extent of such Illness could not be known ur tll thelr removal from the cars, and probably not for some little time after such removal. �Demurrer. �, for plaintif?. �, for defendant. �HalijEtt, D. J. In the case aj^ainst the railroad company, the plaintifï alleges that he shipped certain horses over its line, and that they were detained on the way, at a place called Brookville, for a space of 24 hours, in consequence of ■which they were siclc, and two of them died; that he was put to expense in taking care of ail of them, and that some of them depreciated in value — those that were not wholly lost. To this the defendant sets up that there was a special contract in relation to the shipment of these horses ; but the special contract does not in any way provide for the detention of the stock on the way. It says nothing on that subject; so that, as far as the first defence alleged here is ooncerned, the con- tract is not at ail pertinent to anything that is alleged in the declaration. The plaintiflf, in demurring to it, says that he demurs to so much of the answer as sets up the special con- tract. We do not receive a demurrer ou such a specifica-