Hudson & Co. v. The Northern Pacific R. Co.
| Decision Date | 19 October 1894 |
| Parties | HUDSON & COMPANY v. THE NORTHERN PACIFIC RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. F. R. GAYNOR, Judge.
ACTION at law to recover damages for delay in the shipment of thirteen cars of cattle from Genesee, Idaho, to Sioux City Iowa. Trial to a jury, verdict and judgment for plaintiff and defendant appeals.
Affirmed.
Swan Lawrence & Swan for appellant.
Joy, Call & Joy for appellee.
On the thirteenth day of July, 1891, he plaintiff, through his agents, delivered to the defendant, at Genesee, Idaho, for shipment to Sioux City, Iowa thirteen car loads of cattle, consigned to "Wyatt & Hopkins," for sale on the general market, for the account of plaintiff. The cattle were received by the defendant, and it undertook to transport them, as a common carrier, to their point of destination. They did not reach Sioux City until about midnight on the twenty-first, or early morning of the twenty-second, day of July. The plaintiff claims that the cattle were delayed on the way by reason of the negligence of the defendant, its agents and employees, for an unreasonable length of time, and that, by reason thereof, he was damaged in the shrinkage of the animals, decline in the market price, and in expense in caring for them during the delay, in the aggregate the sum of one thousand, nine hundred and eighty-eight dollars and seventy-five cents. The defendant, while admitting the receipt of the cattle, alleges that it did so under a contract with Wyatt & Hopkins which provided, among other things: It provided further: "The shipper hereby assumes all risk of damage which may be sustained by reason of any delay in such transportation, not resulting from the willful negligence of the railroad company." It avers that this contract was entered into in Idaho, and that it was lawful under the laws of that state, and binding upon the parties; that the alleged delay in the shipment of the cattle was not due to any want of care, or carelessness, on the part of the defendant, its agents or employees, but the damage, if any, caused by the delay, was assumed by the plaintiff, or occasioned by his carelessness and neglect. Defendant further says, in answer, that plaintiff did not give the notice in writing of his claim for loss or injury, as provided by the contract. The plaintiff, in reply, admitted the making of the contract, but denies its validity, and further admits that he did not give the notice required by the contract of his loss and injury, but alleges that the defendant waived the same. On the issues thus joined, the case was tried to a jury, which returned a verdict for plaintiff, on which judgment was rendered, and defendant appeals. Although forty-one errors are assigned, defendant, in argument, discussed but few of them; and, under the well known rules of this court, we will consider those only which are argued, the others being waived.
It is first urged that there was not sufficient testimony of waiver of the provisions of the contract requiring notice to be given the company by the plaintiff of loss or injury to his stock. This question is presented by the assignment of errors wherein it is claimed that the court erred in not giving to the jury the ninth instruction asked by defendant, to the effect that the proof introduced did not, as a matter of law, amount to a waiver. The court instructed the jury that the contract was binding upon the plaintiff, but that the defendant might waive its provisions, and gave them proper rules to determine what would constitute a waiver. This instruction was not properly excepted to, and the evidence adduced to support a waiver, except as to one particular item, was received without objection. There is no assignment in the record that the testimony does not support the waiver, except as it arises upon the exception to the refusal of the court to give the instruction asked. We will assume, however, that the question is properly presented, and turn our attention to the question as to whether there was sufficient evidence to support the alleged waiver.
It appears from the testimony that after the receipt of the cattle, and some time early in August, plaintiff went to St. Paul, and saw Mr. Moore, the general freight agent of the defendant company. He was at that time the head of defendant's entire freight shipping business. Plaintiff related the facts of the case to him, and told him he had sustained a loss. Moore told plaintiff to make out a statement of his damages, or to go to Mr. Harrington, the general claim agent. Moore took plaintiff to Harrington, and told him he (plaintiff) had a claim against the company, and to have plaintiff make out a bill for his damages, and the loss he had sustained; and, if they found plaintiff entitled to any damages, they would adjust it at once. Plaintiff made out a claim, and left it with the claim agent, at this interview. Afterward the claim agent wrote plaintiff the following letter (Exhibit 1):
We are of opinion that these facts were sufficient evidence of a waiver on the part of the defendant, and of its right to insist upon the notice required by the contract, assuming it to be valid, to justify the court in submitting the question to the jury. Such forfeitures are not favored in law, and "courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, on which the party has relied and acted." Any agreement, declaration, or course of action on the part of him who is to be benefited by the contract, which leads the other party to believe that, by conforming thereto, the forfeiture will not be incurred, will, and ought to, estop the promisee from insisting on the forfeiture. Insurance Co. v. Eggleston, 96 U.S. 572, 24 L.Ed. 841; Insurance Co. v. Doster, 106 U.S. 30, 1 S.Ct. 18, 27 L.Ed. 65; Lyon v. Insurance Co., 55 Mich. 141, 20 N.W. 829. "Waiver is where one in possession of any right, whether conferred by law or contract, and of full knowledge of all the material facts, does, or forbears the doing, of something inconsistent with the existence of the right, and of his intention to rely upon it; and thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it afterward." Bish. Cont., section 792. The provision in the contract in question was for the benefit of the defendant, and it might elect to rely on it or not, as it saw fit. If it so conducted itself as to evince an intention not to rely thereon, and induced the plaintiff to go to the trouble and expense of making out his claim for damage, in accordance with the suggestion of its general freight agent, it is now estopped from insisting on the forfeiture. Hollis v. Insurance Co., 65 Iowa 454, 21 N.W. 774; Titus v. Insurance Co., 81 N.Y. 410; Insurance Co. v. Norton, 96 U.S. 234, 24 L.Ed. 689.
In the case of Titus v. Insurance Co., the court, in speaking of a waiver of forfeiture in insurance policies says: "But it may be broadly asserted that if, in any negotiations or transactions with the assured, after knowledge of the forfeiture, it recognizes the continued validity of the...
To continue reading
Request your trial