32 Iowa 288 | Iowa | 1871
This issue was determined in favor of defendant; but it by no means follows that the determination of this issue also settled that the defendant was under no obligation to keep and continue the switch and side track already constructed. This question was not involved in the former issue, and it was not determined, and could not properly have been determined, in that trial. An examination of the answer of defendant shows that it did not intend to raise any question as to its liability to keep and maintain the side track. The answer avers that: “As appears by the records of the Dubuque and Pacific Pailway Company, the sum of $250 was the estimated damage done to certain land of the plaintiffs outside of the 100 feet right of way, and was also the estimated
It was in consequence of this controversy that tbe switch was temporarily locked, and tbe defendant refused to come upon tbe side track for tbe freight. Defendant introduces into bis answer an argument why tbe construction sought to be placed upon tbe contract by plaintiff is not tbe pi’oper one. It is tbe alleged fact that the consideration is grossly inadequate for such a contract. Defendant admits that tbe Dubuque & Pacific Railway Company received an adequate consideration for constructing tbe switch and side track. How could it then, having succeeded to tbe rights of said company, claim tbe right to discontinue or remove said side track and road-bed. Tbe obligation to continue tbe side track might well subsist and be of value to plaintiff, without any obligation upon tbe part of defendant to run trains upon it for freight. Having tbe switch and tbe defendant’s obligation to maintain it, tbe plaintiffs might be able to procure an agreement from defendant to discharge and receive freight upon it, for a much less sum than they could convey their freight by teams to tbe next station, alleged in tbe answer of defendant to be one and one-third miles distant. Tbe question involved in this controversy was not, in our opinion, presented in tbe for
III. It is claimed that the court erred in giving the second, third, fourth and fifth paragraphs of the charge to the jury, and in refusing to give the fifth, sixth, seventh and eighth instructions asked by the defendant. The instructions given embody in various forms the doctrine that the adjudication of an action brought to recover damages for a refusal to receive a car load of freight would not be a bar to an action for damages for a subsequent total abandonment of the side track, unless the refusal was a final abandonment by the defendant of the contract, and that fact was known to the plaintiff at the time of commencement of the former action, and that it is for the jury to determine whether such refusal was a temporary or final abandonment. These instructions fully harmonize with the views expressed in this opinion, and are as favorable to the defendant as the facts warrant. The instructions asked by defendant, embodying the opposite doctrine, were properly refused.
IY. The defendant assigns error upon the refusal of the court to give the following instruction: “The receipt executed by the plaintiffs to the Dubuque and Pacific Bailroad Company, dated January 265 1859, and introduced in evidence by the defendant, shows upon its face that the contract sued on in this action was received by the plaintiff in full payment and satisfaction for the borrow land mentioned in plaintiffs’ petition : and, therefore, your verdict must be for defendant.” This instruction was properly refused. Conceding that the receipt shows all that is claimed, it does not exonerate the Dubuque and Pacific Bailway Company nor any one assuming its obligations from liability for damages for a refusal to perform the conditions of the contract.
Y. It is claimed, lastly, that the verdict of the jury is excessive. The evidence shows that plaintiff owned seven
Affirmed.