Higley v. Burlington, C. R. & N. Ry. Co.,

CourtUnited States State Supreme Court of Iowa
Writing for the CourtKINNE
Citation99 Iowa 503,68 N.W. 829
Decision Date23 October 1896
PartiesHIGLEY ET AL. v. BURLINGTON, C. R. & N. RY. CO.

99 Iowa 503
68 N.W. 829

HIGLEY ET AL.
v.
BURLINGTON, C. R. & N. RY.
CO.

Supreme Court of Iowa.

Oct. 23, 1896.


Appeal from superior court of Cedar Rapids; T. M. Gibberson, Judge.

Plaintiffs claim that from January 1, 1887, to and including January 1, 1891, they shipped over the defendant's line of railway, from Cedar Rapids, Iowa, egg cases and cases of eggs; that defendant returned the weights of the cases of eggs at 60 pounds, and the egg cases at from 12 to 20 pounds, and so charged the plaintiffs for such weights; and avers that in fact the cases of eggs weighed only 55 pounds, and the egg cases only 11 pounds. This action is brought to recover the overcharges in freight demanded by the defendant and paid to it by reason of said excessive weights. The defendant answered first by a general denial, and pleaded the statute of limitations as to all claims dated prior to August 10, 1889, and also claimed that the settlements were voluntarily made, and amounts paid, and receipts given, and the whole matter had been adjusted and settled. It also averred that the business was conducted by plaintiffs and defendant by weighing some of the egg cases and cases of eggs, and thus reaching an average, instead of by weighing each separately, and that settlements were made from time to time, based upon such averages. The cause was tried to a jury, and a verdict returned for the plaintiffs for $449.43, upon which judgment was entered. Defendant appeals. Affirmed.

[68 N.W. 830]

S. K. Tracy and J. C. Leonard, for appellant.

Rickel & Crocker, for appellees.


KINNE, J.

1. Defendant complains because the court refused to give certain instructions asked, to the effect that if the plaintiffs and defendant estimated the weight of the freight, and settlements were for years made upon such estimates without objection, and if plaintiffs paid the charges based thereon, then plaintiffs cannot recover. Also because the court, on its own motion, gave instructions upon this point not in harmony with those asked. The instruction asked was properly refused, because not applicable to the facts as disclosed by the evidence. The evidence did not show, or tend to show, that plaintiffs ever agreed that the defendant might arrive at the weight of the freight by weighing some of the egg cases and cases of eggs, and averaging the balance of them. It does not appear that such custom of the defendant was known to plaintiffs. Furthermore, the evidence of the defendant's witnesses shows that the approximate weight...

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9 practice notes
  • May Department Stores Co. v. Union E.L. & P. Co., No. 34288.
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1937
    ...overcharges constituted a mutual, open and current account. Roberts v. Neale, 134 Mo. App. 612; 37 C.J. 869; Higley v. Railroad Co., 68 N.W. 829. McCammon & Sandison, Taylor Sandison and John P. McCammon for (1) The petition shows on its face that prior to the acquisition of Cupples' st......
  • Read v. Ferguson, No. 45040.
    • United States
    • United States State Supreme Court of Iowa
    • August 6, 1940
    ...Anderson, 77 Iowa 501, 42 N.W. 431;Cedar County v. Sager, 90 Iowa 11, 57 N.W. 634;Higley & Co. v. Burlington, C. R. & N. Ry. Co., 99 Iowa 503, 68 N.W. 829, 61 Am.St.Rep. 250;Soderland v. Graeber, 190 Iowa 765, 180 N.W. 745; Tucker v. Quimby, 37 Iowa 17. Appellees rely upon these, am......
  • Hallowell v. Van Zetten, No. 40969.
    • United States
    • United States State Supreme Court of Iowa
    • December 17, 1931
    ...by parol evidence. Mounce v. Kurtz, 101 Iowa, 192, 70 N. W. 119;Higley & Co. v. Burlington, C. R. & N. R. Co., 99 Iowa, 503, 68 N. W. 829, 61 Am. St. Rep. 250;Halligan v. Keller, 167 Iowa, 72, 148 N. W. 971;Butler v. Farmers' Nat. Bank, 173 Iowa, 659, 155 N. W. 999;Lowe Bros. & ......
  • Stomne v. Hanford Produce Co.
    • United States
    • United States State Supreme Court of Iowa
    • April 8, 1899
    ...is in issue. If our views on this point need the support of authority, we refer to the case of Higley v. Railway Co., 99 Iowa, 503, 68 N. W. 829, as somewhat in point. Another claim of appellant is that plaintiff's right of action, if any he has, is upon the agreement made at the time of th......
  • Request a trial to view additional results
9 cases
  • May Department Stores Co. v. Union E.L. & P. Co., No. 34288.
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1937
    ...overcharges constituted a mutual, open and current account. Roberts v. Neale, 134 Mo. App. 612; 37 C.J. 869; Higley v. Railroad Co., 68 N.W. 829. McCammon & Sandison, Taylor Sandison and John P. McCammon for (1) The petition shows on its face that prior to the acquisition of Cupples' st......
  • Read v. Ferguson, No. 45040.
    • United States
    • United States State Supreme Court of Iowa
    • August 6, 1940
    ...Anderson, 77 Iowa 501, 42 N.W. 431;Cedar County v. Sager, 90 Iowa 11, 57 N.W. 634;Higley & Co. v. Burlington, C. R. & N. Ry. Co., 99 Iowa 503, 68 N.W. 829, 61 Am.St.Rep. 250;Soderland v. Graeber, 190 Iowa 765, 180 N.W. 745; Tucker v. Quimby, 37 Iowa 17. Appellees rely upon these, am......
  • Hallowell v. Van Zetten, No. 40969.
    • United States
    • United States State Supreme Court of Iowa
    • December 17, 1931
    ...by parol evidence. Mounce v. Kurtz, 101 Iowa, 192, 70 N. W. 119;Higley & Co. v. Burlington, C. R. & N. R. Co., 99 Iowa, 503, 68 N. W. 829, 61 Am. St. Rep. 250;Halligan v. Keller, 167 Iowa, 72, 148 N. W. 971;Butler v. Farmers' Nat. Bank, 173 Iowa, 659, 155 N. W. 999;Lowe Bros. & ......
  • Stomne v. Hanford Produce Co.
    • United States
    • United States State Supreme Court of Iowa
    • April 8, 1899
    ...is in issue. If our views on this point need the support of authority, we refer to the case of Higley v. Railway Co., 99 Iowa, 503, 68 N. W. 829, as somewhat in point. Another claim of appellant is that plaintiff's right of action, if any he has, is upon the agreement made at the time of th......
  • Request a trial to view additional results

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