194 Iowa 1145 | Iowa | 1922
I. Facts showing the situation, sufficient to present the claimed errors, are substantially as follows:
■ Plaintiff owned a farm containing 240 acres. The highway in question ran east and west along the south side of one 80 of said farm. The highway was a main-traveled road between Fort Dodge and Lehigh, Iowa, and was a part of the highway known as the “Boone Road.” This highway turned southward just shortly before it reached the extreme eastern point of plaintiff’s land. Plaintiff’s farm buildings fronted and abutted upon this
Appellant did not resort to condemnation proceedings, and claimed that such proceedings were avoided by an oral agreement between appellee and appellant, before appellant laid its railway, whereby appellee agreed to accept $600 in full payment of all of his damages; and that, after the railroad was constructed, appellee repudiated the agreement, and declined to accept the said sum of $600; that appellant relied on said oral agreement; and that plaintiff was estopped, by reason thereof, to claim any sum greater than $600, which appellant tendered into court.
Whether the agreement claimed by appellant was made or not was a fact issue, squarely raised by the pleadings. The testimony on this issue was in direct conflict. Appellee testified:
“I did not at any time or place ever agree to take from the defendant company, or any of its officers or agents, the sum of $600, <ü%any other sum in settlement of the right of the railroad company to what has been done, as described in the evidence here. They made a great many propositions to me, but I never accepted any of them. The first proposition was after they commenced digging, and the first offer was $100. They made me a dozen offers, and I refused to make any agreement with them at all. They never made any offer that I would accept. I never said I would take a certain amount if they would stop cars in front of my place and build steps down each of the embankments. ’ ’
Appellant’s agent, J. J. Foster, testified as to the claimed agreement that, for the sum of $600 and the land that lay north of what was the south line of the 80,' he (appellee) would convey all of the land north of the south line, and “we were to move the road on the south side and give him a crossing about 500 feet west of where the present road crosses the railroad, and the company was also to stop the trains there, making a stop on its schedule, and put in steps. We made an 18- or 20-foot excavation along his land, where I said I had agreed with him to take right of way upon the payment of $600.”
R. L. Cooper, chief engineer for the defendant, testified that he tendered to appellee a check for $600 and a written agreement; that appellee “said he had changed his mind, and wanted more money, but did not deny at that time that he had made any agreement to accept $600 in settlement of the damage claimed; and Mr. Darst told me at the time that was the terms of the agreement, but he had changed his mind.”
Appellant argues that, while there is a sharp conflict in the evidence, the testimony of Darst amounted to simply a gen
III. Appellant complains that the court did not submit to the jury its plea of estoppel, and that such omission was error.
As before mentioned, appellant pleaded that there was an oral agreement between appellant and appellee, made prior to the time that appellant began constructing its railway in front of appellee’s premises, whereby appellee agreed to accept the sum of $600 in full of all his damages; that this sum was tendered to appellee and refused by him; that appellant began its construction work relying upon the agreement thus made; and that by reason thereof appellee was estopped to maintain this action against appellant. We think that appellant’s plea of estoppel was adequately submitted to the jury,—although not under the designation of estoppel,—in Instructions 4 and 5, wherein the court told the jury that, if they found the oral agreement as contended by appellant, their verdict should be for $600, and no more. Appellant’s plea of estoppel, in substance and effect, was that there was a binding' oral contract between the parties, and that recovery could be only on the contract, and consequently for the sum of $600. Miller v. Conn, 193 Iowa 458.
IV. Appellant complains that the court erred in stating to the jury that the road along the south side of appellee’s premises was a “duly established highway,” when there was no evidence in the record showing that this road was an established highway. Appellee liad alleged that the road in question was a “duly established highway,” and the court, in setting forth plaintiff’s claim in that particular, used the language employed by appellee
Other assignments relate to statements contained in Instruction 1, which instruction is a statement of the pleadings as made, and not to statement of issues, and are without merit.
V. Appellant complains of Instruction No. 3 on the ground that such instruction stated that the defendant admitted that it constructed its railroad on the south along plaintiff’s land substantially as alleged in plaintiff’s petition, and that such statement is not justified by the pleadings or evidence. Appellant insists that at all times it contended that the only place the highway was destroyed was immediately in front of plaintiff’s house. In the instruction complained of, the court told the jury that:
“The defendant in its answer admits and alleges that it did construct its railroad to the south and along the plaintiff’s land substantially as alleged by the plaintiff, and that, in so doing, it appropriated or changed the highway theretofore running along plaintiff’s said land.”
"We think the objection is without merit. There was no dispute in the evidence as to the part of the old highway of which appellee was déprived of the use, and the part which remained available to him, and the jury was not, we think, confused or misled by the instruction.
VI. Appellant urges that the verdict is contrary to Instruction 2, in which the jury was told that it was incumbent upon the defendant, before it could avail itself of the oral agreement pleaded, to establish such agreement by a preponderance of the evidence, for the reason that the oral agreement was
•“We are not permitted to weigh conflicting evidence, but are required to view the evidence most favorably to a support of the judgment.”
VII. Instruction 6 given by the court reads:
“The only element of damage you are to take into account and consider in estimating the amount of his recovery is the obstruction and interference to the extent, if there was such, of the ingress and egress and the inconvenience in getting to and from plaintiff’s said premises as a result of the construction of defendant’s railroad by plaintiff’s said land. Upon the payment of damages so found, you will also allow interest from the time said railroad was constructed to the present time, at the rate of 6 per cent.”
Attack is made on the above quoted instruction because, as claimed by appellant, the instruction permitted the jury to consider that there may be inconvenience suffered by visitors or other persons in coming to or going from plaintiff’s premises. As we understand counsel for appellant, they think the instruction was not sufficiently explicit in that it omitted to confine “inconvenience of getting to and from plaintiff’s said premises” to plaintiff and members of his family. No instruction was requested by defendant on this matter. We think the complaint is without merit.
This instruction is also assailed because by it the court permitted the jury to allow interest at the rate of 6 per cent on the amount of damages found, from the time the railroad was constructed. Counsel for appellant argue that the allowance of interest was erroneous, and cite, in support of their contention, Brentner v. Chicago, M. & St. P. R. Co., 68 Iowa 530, and Jacobson v. United States Gypsum Co., 150 Iowa 330. The holdings in these cases would not prevent recovery of interest in the instant case. The Brentner case was an action brought under the statute permitting recovery of double damages for killing stock by a railroad
“It is true that the damage was unliquidated, and plaintiff is not entitled, as a matter of law, to interest. But it is well settled that, in estimating even unliquidated damages, the jury may take into account interest on the sum found necessary to compensate the plaintiff for the injury suffered at the time of the loss, on the theory that such interest is a part of his damage. Richmond v. Dubuque & S. C. R. Co., 33 Iowa 422, 502; Frazer v. Bigelow Carpet Co., 141 Mass. 126 (4 N. E. 620); Richards v. Citizens Nat. Gas Co., 130 Pa. 37 (18 Atl. 600); Lincoln v. Claflin, 7 Wall. 132, 139 (19 L. Ed. 106). As the verdict of the jury was with reference to the money loss sustained by the plaintiff at the time of the fire, they were properly told that they might, as an element of damage, include interest on the amount of such loss. ’ ’
We discover no error in the submission of the ease. The judgment of the trial court is affirmed. — Affirmed.