Higley v. Burlington, Cedar Rapids & Northern Railway Co.

• Decision Date: 23 October 1896
• Citation: 68 N.W. 829,99 Iowa 503
• Parties: E. A. HIGLEY & COMPANY v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

68 N.W. 829

99 Iowa 503

E. A. HIGLEY & COMPANY v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 23, 1896

Appeal from Cedar Rapids Superior Court.--HON. T. M. GIBERSON 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 sixty pounds, and the egg cases at from twelve to twenty pounds and so charged the plaintiffs for such weights; and avers that, in fact, the cases of eggs weighed only fifty-five pounds, and the egg cases only eleven 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 four hundred and forty-nine dollars and forty-three cents, upon which judgment was entered. Defendant appeals.

Affirmed.

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

Rickel & Crocker for appellees.

OPINION

KINNE, J.

I.

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 of the cases of eggs was fifty-five pounds, and the weights charged for were more than that. Nor is the claim that settlements were made based upon such weights, arrived at by averages, well founded. No evidence appears in this record touching any agreement between the parties as to an agreed weight, or to any weight sanctioned by them as the weight that should be fixed upon the egg cases or cases of eggs. Indeed, we do not understand from the evidence of defendant's witnesses that they make any claim that any such agreement existed between the plaintiffs and defendant. We do not understand that any settlements were ever made between these shippers and the railway company. The facts appear to be that the company fixed its weights upon this freight, and the plaintiffs paid the bills. No doubt the plaintiffs might have protested against paying on the basis of these excessive weights, but they were not bound to do so. Heiserman v. Railway Co., 63 Iowa 732 (18 N.W. 903).

II. It is said that plaintiffs are barred as to all items dated prior to August 10, 1889. It is urged that the items did not constitute an open, running account; that each item was a distinct transaction. There was no settlement regarding the payment of these items of overcharges. They were never adjusted between the parties. We think these numerous items should be treated as constituting an open current account. There was no break, or interruption, in the account. As we have said, as to these claimed overcharges, the account was open. It was running,...