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

Kinne, J. [504] 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 [505] 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, 736 (18 N. W. Rep. 903). 2 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 adj usted between the parties. We think these numerous items should be treated as constituting an open, [506] 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; and constituted a connected series of transactions, — more than two thousand three hundred of them. Tucker v. Quimby, 37 Iowa, 19. It has been held that a series of illegal discriminations by a common carrier at different times against a shipper of goods constitutes but one cause of action. Langdon v. Railway Co. (Sup.) (15 N. Y. Supp. 255.) So mistakes in payment to a railroad company for carrying the mails are mistakes of fact, and for the purpose of rectifying them, the items thereof constitute a running account. Duval v. U. S., 25 Ct. Cl. 46. And see, also, Moser v. Crooks, 32 Iowa, 172; Wendeling v. Besser, 31 Iowa, 248; Mills v. Davies, 42 Iowa, 98. If, as this court has held, items of board, furnished from day to day, constitute a continuous, open, current account, there seems no good reason for holding to a contrary rule as to items of money paid by reason of overcharges on freight. Treated as an open, current account, none of the plaintiffs’ claim is barred. 3 III. Complaint is made because the court permitted the plaintiff to show that the weight of the eggs in cases, and of the egg cases, was other and different from that recited in the receipts given them. The contention of the defendant is that, before such a receipt can be varied by parol evidence, it must be averred that such receipt was obtained by fraud, or mistake. Counsel cite us to no case sustaining such a doctrine, and it may well be doubted if any such can be found. A receipt is prima facie evidence, but may be contradicted by parol evidence. 1 Gfreenleaf Ev. section 305. If these receipts be considered bills of lading, they are nevertheless open to contradiction by parol evidence as to the fact of the weight of the goods recited therein. [507] Id.; Garden Grove Bank v. Humeston & S. Railway Co., 67 Iowa, 532 (25 N. W. Rep. 761); Chapin v. Chicago, M. & St. P. Railway Co., 79 Iowa, 582 (44 N. W. Rep. 820). 4 IY. It is said that, as plaintiffs did not file a reply to the defendant’s amendment to its answer, in which it pleaded a settlement,' the court should have instructed the jury that it was a complete defense, and that it erred in directing the jury not to consider the said defense. Our statute provides that there shall be no reply except “(1) where a counter-claim is alleged, or (2) where some matter is alleged in the answer.to which plaintiff claims to have a defense by reason of the existence of some fact which avoids the matter alleged in the answer.” Code, section 2665. It was, therefore, unnecessary to file a reply to the amendment. It was denied by operation of law. Nor was there any error in directing the jury not to consider the plea of a settlement, as there was no evidence tending to show a settlement. Discovering no error, the judgment below is affirmed.