Sedgwick v. Cottingham

• Decision Date: 07 October 1880
• Citation: 54 Iowa 512,6 N.W. 738
• Parties: SEDGWICK v. COTTINGHAM.
• Court: Iowa Supreme Court

54 Iowa 512

6 N.W. 738

SEDGWICK

v.COTTINGHAM.

Supreme Court of Iowa.

Filed October 7, 1880.

Appeal from Cherokee district court.

Action to recover for a car load of wheat shipped by the plaintiff to the defendant. Trial to the court. A finding of facts and judgment for the defendant. The plaintiff appeals.Struble Bros., for appellant.

Kellogg & Herrick, for appellee.

SEEVERS, J.

The following facts were found by the court:

First. That in the month of July, 1878, the plaintiff, Sedgwick, resided in Portlandville, in the county of Plymouth, and state of Iowa, and that he was then and there engaged in the purchase and sale of grain.

Second. That the defendant, Cottingham, was at said time a resident of Benton, in the state of Wisconsin, and that he was then and there engaged in the milling business.

Third. That the plaintiff and defendant, on or about the eighth day of July, 1878, made an agreement that the plaintiff should ship to the defendant by rail from Portlandville, Iowa, via the Illinois Central Railroad, one car load of No. 1 hard wheat, to be billed to Cairo, Ill., to be milled by defendant in transit at Council Hill, Ill.; that defendant was to take said wheat from the car at said Council Hill, haul the same to his mill at Benton, Wis., 10 miles distant from Council Hill, and pay for said wheat at the price of one dollar per bushel, less freight, as soon as the wheat should be weighed on defendant's scales at his said mill.

Fourth. That by the terms of this agreement, under which the said wheat was shipped, the same was to be delivered by the plaintiff, Sedgwick, to the defendant, Cottingham, on the track at Council Hill, in Jo Daviess county, Illinois.

Fifth. That the plaintiff, Sedgwick, on the ninth day of July, 1878, shipped to the defendant, under the agreement heretofore formed, one car No. 1 hard wheat, from Portlandville down to Council Hill, Illinois, which said car contained 400 bushels.

Sixth. That the freight on said car from Portlandville down to Council Hill, Illinois, was $_____.

Seventh. That said car arrived at Council Hill, Illinois, at 11 A. M., July 11, 1878, in good condition, and with the wheat therein, 400 bushels in amount, in good condition.

Eighth. That on the arrival of said car at said Council Hill, Illinois, July 11, 1878, the same was immediately side tracked at a place where the wheat could have been taken therefrom, but at a place where it was unusual to side track same and take grain therefrom, and at a place where grain could not have been removed therefrom with reasonable convenience.

Ninth. That no special reason is shown to prevent the placing of the car at a usual and reasonable place for unloading, nor is any such reason shown for permitting the same to remain during the night where it was found side tracked.

Tenth. That said car could, on demand, and within five minutes after demand, on July 11th, have been placed in a suitable and convenient place for the removal of the wheat therefrom.

Eleventh. That at the time of the arrival of the car at Council Hill, Illinois, the following rule of the Illinois Central Railway Company was in force at that place, to-wit: “UNLOADING AND LOADING. All chartered cars or car loaded with lumber, grain, or other property, which is to be unloaded by owners or consignee, whether at side track or regular stations, must be unloaded within 24 hours after their arrival at their place of destination, or a charge of five dollars per day will be made for such car after that time till...