Voorhees v. Chicago, R.I. & P.R. Co.

• Decision Date: 28 October 1886
• Citation: 30 N.W. 29,71 Iowa 735
• Parties: VOORHEES v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO
• Court: Iowa Supreme Court

30 N.W. 29

71 Iowa 735

VOORHEES v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO

Supreme Court of Iowa, Des Moines

October 28, 1886

Appeal from Marion District Court.

THURSDAY OCTOBER 28, 1886.

ACTION for the recovery of damages caused, as plaintiff alleges, by defendant's failure to perform its contract to furnish cars at a specified time for the shipment of a lot of hogs to Chicago. The cause came on for trial at the January term 1885, of the district court, and, after the parties had each rested, defendant's counsel filed a motion to direct the jury to return a verdict for it. After that motion was argued, and before any order upon it had been entered, the plaintiff asked leave to introduce evidence on a material question which his counsel stated they had overlooked by inadvertence. The court granted leave to introduce the evidence; but, after it had been introduced, defendant's counsel moved the court to continue the cause, alleging, as a ground therefor, that when the parties rested they had discharged their witnesses, who had immediately left the court, and they were consequently not prepared at that term to meet the additional evidence which plaintiff had been permitted to introduce. The court sustained this motion, and taxed the costs of the term to plaintiff. At the same term plaintiff filed a motion to set this order aside, which, at the August term, 1885, was overruled. At that term the cause again came on for trial on the merits, and there was a verdict and judgment for plaintiff. Plaintiff appeals from the order continuing the cause, and taxing the costs to him and defendant appeals from the final judgment; its appeal being first perfected.

On plaintiff's appeal judgment affirmed. On defendant's appeal judgment reversed.

T. S Wright and L. Kinkead, for appellant.

Bousquet & Earle, for appellee.

OPINION

REED, J.

On the sixteenth of October, 1882, plaintiff went to Olivet, a station on defendant's road, for the purpose of making arrangements for the shipment, on the next day, of five carloads of hogs from that station to Chicago. There was no telegraph office at Olivet, and the station agent informed plaintiff that an order for the necessary cars could not be forwarded by mail in time to receive them for the next day. Plaintiff claims that the agent requested him to go to Leighton, a station a few miles away, and have an order for the cars telegraphed from there, and stated that the agent there frequently ordered cars for Olivet. Leighton is on the line of road between Keokuk and Des Moines, while Olivet is on what is known as the "Washington & Knoxville Branch." Both lines are operated by defendant, and they cross each other at Knoxville Junction, a few miles from Olivet and Leighton. The Washington & Knoxville branch has a direct Chicago connection, and it was by that line that plaintiff desired to ship his hogs. He went to Leighton, and, as he claims, informed the agent there that the agent at Olivet requested that an order for the cars be telegraphed from there. The agent accordingly sent a dispatch to the train dispatcher on the Keokuk & Des Moines line, requesting him to send the cars to Olivet in time for the shipment the next day. The name of the Olivet agent was signed to the dispatch, and plaintiff saw it before it was sent. He also testified that the agent afterwards told him that he had received an answer to the dispatch, and assured him that the cars would be at Olivet in such time that the shipment could be made on the next day. He claims that, relying on this assurance, he drove his hogs to Olivet, and was ready to ship at the designated time. The cars were not delivered at Olivet, however, until the nineteenth, and the hogs were shipped on that day. If they had been shipped on the seventeenth, they would have arrived at Chicago on the nineteenth. As it was, they reached there on the twenty-first. A material decline occurred in the price of hogs in the Chicago market between the nineteenth and twenty-first. By this action plaintiff seeks to recover the cost of keeping the hogs from the seventeenth to the time they were shipped, and the difference between what he received for them when he sold them and the amount he would have received if he had been able to place them on the market on the nineteenth. The Olivet and Leighton agents were both examined on the trial. The former denied that he requested plaintiff to go to Leighton, and the latter testified that he did not give plaintiff any assurance that the cars would be at Olivet the next day; and it was proven that the agent at Leighton had no express authority to transact business for defendant, except that pertaining to his own station; also that the train-master, to whom said dispatch was sent, had no express authority to send cars to stations on the other line.

I. The district court gave the following instruction to the jury "If you find from a preponderance of the evidence that plaintiff applied to the station agent of defendant at Olivet for cars in which to ship his hogs to Chicago, such cars to be furnished at a specified time and...