Carrier v. Chicago, Rock Island & Pacific Railway Co.
44 N.W. 203
Iowa
1890
Check Treatment
Given, J.

1. statute of cSrieís°-uncharges^6 onñ-aüSfsed I. Whеn these causes of action are alleged to have accrued, there was no statute, state or national> rates, nor providing for e(lua^fcy of rates; hence the right of the plaintiffs to maintain suсh actions must be determined by the common law. It is not questioned but that at common law a common carrier was only entitled to charge reasonable rates, and was liable to an action for unreasоnable charges. The counts demurred to show that the alleged causes of action accrued more than five years before the bringing of these actions. The sole question presented In the recоrd and arguments is whether the counts contain such allegations as take the cases out of the provisions of paragraph 4, section 2529, Code, limiting the bringing of actions “founded on unwritten contracts, those brought for injuries to property, or for relief on the ground of fraud, in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect, within fivе-years” after the causes accrue. Section 2530, Code, provides that in actions for relief on the grounds of fraud or mistake, and in actions for trespass to property, the cause of action shаll not be deemed to have accrued until the *86fraud, mistake or trespass complained of shall have been discovered by the party aggrieved. The fraud here contemplated is that defined in the preceding section, to-wit, such as was heretofore solely cognizable in a court of chancery. Gebhard v. Sattler, 40 Iowa, 152; Brown v. Brown, 44 Iowa, 349; Phoenix Ins. Co. v. Dankwardt, 47 Iowa, 432; Higgins v. Mendenhall, 51 Iowa. 141. These are law .actions, and clearly not such as were heretofore solely cognizаble in a court of chancery, g,nd therefore not within this exception to the general statute of limitation.

' tion: fraudulent concealóTact?on-Sapíuieation o£ II. It is not contended that they are within any of the other expressed exceptions ‍‌‌‌‌​‌‌​‌​‌​‌​‌‌​​‌​​‌​​​‌​‌‌​‌​‌​​​​‌‌​‌​​‌‌‌‌‌‍to the general statute; but appellees rely upon the rule laid down in District Twp. of Boomer v. French, 40 Iowa, 01, and cases cited as approving and following that case. That was an action to recover moneys alleged to have been recеived by the defendant French, as treasurer of the plaintiff township, and appropriated to his own use. The petition alleged that at the close of his term a partial settlement was had with the defendant, but, by means of false and fraudulent entries in his books as treasurer, and by means of fictitious entries and corrupt and fraudulent concealments and misrepresentations, the defendant kept from the plaintiff’s knowledge thе fact of the receipt of said sum until October, 1883, and plaintiff had no knowledge of the facts, or of the gross frauds perpetrated by defendant, till said date. The petition showing that the action was not brought within three years, defendant demurred, on the ground that the action was barred. The demurrer was sustained, and plaintiff appealed. This court, after citing Code, section 2530, says: “This action does not come within the languagе or meaning of the section quoted, for the reason that the action is not for relief on the ground of fraud, but on the ground that the defendant failed to pay over money received by him. The cause of aсtion does not grow out of the fraud alleged. It existed independent of the fraud. Under the provisions of the *87section quoted above, the fact that the plaintiff, by reason of the fraud of the defendant, failed to discover the cause of action, does not defeat the bar of the statute. That is defeated, by the terms of that section, only where the cause of action is grounded in fraud.”

There is some contention as to whether these actions are for unreasonable charges and unjust discriminations, or for unreasonable charges only, Mere discrimination, without injury, would not be actionable. When the discrimination is by charging unrеasonably, it is the unreasonable charge that is the ground of the action. The ground of the action against French was his failure to pay the money received; the ground of these, the defendant’s failure to pay back the money charged and received in excess of what was reasonable. In each case the plaintiffs have a cause of action independent of the frauds alleged. These cases, like that of District Township v. French, measured by the statute alone, .are clearly barred; but in that case this court held the rule to be that, “where the party against whom a cause of action existed in favor of аnother, by fraud or actual fraudulent concealment prevented such other from obtaining knowledge thereof, the statute would only commence to run from the time the right of action was discovered, or might, by the use of diligence, have been discovered.” Appellant contends that these cases are distinguishable from that; that French occupied a fiduciary relation towards the township, by virtue of which it was his duty to disclose the truth, and especially not to deceive, while such was not the legal duty of this defendant. The defendant is a quasi public corporation, owing certain duties to the public; and, in the absence of statute, fixed ‍‌‌‌‌​‌‌​‌​‌​‌​‌‌​​‌​​‌​​​‌​‌‌​‌​‌​​​​‌‌​‌​​‌‌‌‌‌‍its rates without other restriction than that they should be reasonable. It was said in Heiserman v. Railway Co., 63 Iowa, 736, that “railroad companies are public carriers, and those who employ them are in their power, and must bow to the rod оf authority which they hold over consignors and consignees of property transported by them.” The reason for the rule requiring disclosures and fair dealing *88applies to this defendant with the same force that it did to French.

III. Appellant contends that when exceptions are provided to a general statute it excludes all others than those expressed, and that the courts are not at liberty to ingraft other excеptions than those expressed upon such a statute. This claim finds strong support in the following cases, cited by counsel: Bank v. Kissane, 82 Fed. Rep. 429; Engel v. Fischer, 7 N. E. Rep. 300; Fee v. Fee, 10 Ohio, 470; Amy v. Watertown, 22 Fed. Rep. 418; Bank v. Dalton, 9 How. 526; Kendall v. United States, 107 U. S. 125, 2 Sup. Ct. Rep. 277; Favorite v. Booher's Adm'r, 17 Ohio St. 554; Woodburry v. Shackleford, 19 Wis. 65; Freeholders v. Veghte, 44 N. J. Law, 509; Demarest v. Wynkoop, 3 Johns. Ch. 143; Miles v. Berry, 1 Hill (S. C.) 296; Troup v. Smith, 20 Johns. 33. These precise questions were presented and passed upon in a number of thosе cases, and the doctrine announced that the general statute was an exclusion of all others, and that when the legislature has made exceptions the courts can make none, as that would be legislation. Several decisions by this court are also cited in support of these propositions. In Campbell v. Long, 20 Iowa, 382, the questions were as to the extension of time granted to minors, and whether ignorance of a right would prevеnt the operation of the statute. The court says that “but for the exception in the statute it would run against minors and adults alike, and ‍‌‌‌‌​‌‌​‌​‌​‌​‌‌​​‌​​‌​​​‌​‌‌​‌​‌​​​​‌‌​‌​​‌‌‌‌‌‍courts are not at liberty to ingraft upon the statute exceptions which the legislature did not deem necessary.” “No fraud is charged upon defendants.” It was simply a question whether ignorance of a right would prevent the running of the statute. In Shorick v. Bruce, 21 Iowa, 307, the court says: “ The thought that the statute would not run because Wilsоn, the ward, was a person of unsound mind or incapacitated to sue, finds no support either in the statute or in the rules of the common law.” In Relf v. Eberly, 23 Iowa, 469, the question was whether plaintiff’s case, as made by his petition, was, prior to the statute, and, *89within its meaning, solely cognizable in a court of chancery. Speaking with reference to this question, the court says : “Our opinion, therefore, is that in cases of fraud, when the plaintiff’s remedy is concurrent, — that is, when he could have the same' relief either at law or in equity, — the action must be commenced within five years after the perpetration of such fraud, and that he could not sue within that time after the discovery.” The question under consideration was not noticed in that case, and the same is true of Gebhard v. Sattler, 40 Iowa, 152. In Miller v. Lesser, 71 Iowa, 147, the question was whether the fact that the defendant changed his name, and that his place of residence was unknown to plaintiff, would prevent the running of the statute. The right of the courts to apply exceptions recognized at common law, other than those named in the statute, was - not directly in question in either of thеse cases ; and neither of the exceptions sought to be applied are such a,s were recognized at common law.

IY. District Twp. v. French finds strong support in the authorities ‍‌‌‌‌​‌‌​‌​‌​‌​‌‌​​‌​​‌​​​‌​‌‌​‌​‌​​​​‌‌​‌​​‌‌‌‌‌‍cited in the opinion, Reference to Sherwood v. Button, 5 Mаson, 143, ■ wherein Judge Story reviews many of the English and American cases, and to the cases cited by appellant, shows a diversity of rulings on this question by the courts of different states. It is true that some of the cases were under statutes that did not contain an exception as to actions for relief on the grounds of fraud, but the question was whether, in the absence of such an exception in the statute, the courts might apply it, just as in District Twp. v. Frenсh, the question was whether the court might apply the common-law exception announced, though not expressed in the statute. If the question was before us for the first time, we might hesitate to declare the rule announced in District Twp. v. French,; but that case, sanctioned by a long line of respectable authorities, has stood unquestioned as the law of the state for many years, with several sessions of the legislature intervening, and has been cited, and *90more or less directly followed and approved, in Humphreys v. Mattoon, 43 Iowa, 556; Findley v. Stewart, 46 Iowa, 655; Brunson v. Ballou, 70 Iowa, 34; Bradford v. McCormick, 71 Iowa, 129; Wilder v. Secor, 72 Iowa, 161; Shreves v. Leonard, 56 Iowa, 74. We think there is no sufficient reason for now reversing the conclusion announced in District Twp. v. French, supra.

It only remains to determine whether the plaintiffs’ petitions alleged such fraud, or actual fraudulent concеalment, by the defendant, as prevented them from obtaining knowledge of their causes of action within five years next preceding the commencement of these actions. It is alleged that plaintiffs were induсed to and did pay the rates charged upon representations that they were the usual rates, and the same that were being charged to all others for the same service, and upon the promise thаt if ‍‌‌‌‌​‌‌​‌​‌​‌​‌‌​​‌​​‌​​​‌​‌‌​‌​‌​​​​‌‌​‌​​‌‌‌‌‌‍any rebate was granted to any one a like amount would be granted to plaintiffs; that a less rate was being charged to the shippers named and others, which fact was fraudulently concealed from plаintiffs; that the representations were false, and known to the defendant’s officers and agents making them to be so, and were made to prevent plaintiffs from acquiring knowledge of the fact that they were and hаd been charged and had paid unreasonable rates. Our conclusions are that the rule laid down in District Twp. v. French should be sustained, and that the allegations in the counts demurred to bring them within this rale, and that there was no error in overruling the appellant’s demurrer. Aeeirmed.