Seawell v. Pacific & Idaho Northern Railway Co.

121 P. 556 | Idaho | 1912

AILSHIE, J.

(After stating the facts.) — There was a substantial conflict in the evidence, and the findings of the jury thereon are consequently conclusive. (Sec. 4824, Rev. Codes; Snowy Peak etc. Co. v. Tamarack etc. Co., 17 Ida. 644, 107 Pac. 60; Eaves v. Sheppard, 17 Ida. 268, 134 Am. St. 256, 105 Pac. 407; Bowers v. Cottrell, 15 Ida. 221, 96 Pac. 936; Roseborough v. Whittington, 15 Ida. 100, 96 Pac. 437; Lamb v. Licey, 16 Ida. 664, 102 Pac. 378.)

Appellants place their principal reliance for reversal, however, upon the proposition that this is an action on an agreement of settlement of a disputed claim, and that the parties were dealing at arm’s-length and that there is no competent evidence of any fraud being practiced or misrepresentation being made by the appellants in procuring this contract, and that the defense of fraud and misrepresentation has not been established. That contention is met by at least two valid and insurmountable objections in this case. In the first place, while the contract and agreement of settlement enumerates and sets forth the number of sheep which the shippers delivered to the carrier, still it does not appear that there had been any real controversy between the parties as to the number of sheep shipped, but the vital question in dispute was the amount of compensation to be received and whether the shipper would accept the sheep from the carrier at Weiser and receive compensation for the loss sustained by reason of the delivery and consequent shrinkage. In other words, it does not appear that the settlement primarily involved a dispute over the number of sheep shipped.

In the second place, the settlement was made without the company’s agent consulting the records kept by the company and apparently upon the word of the shipper as to the number actually shipped. While the shipper would ordinarily be presumed to know the number of stock he had delivered to the carrier, the carrier, on the other hand, would have no adequate method of knowing the number received except from its records. And, lastly, the company showed diligence and good faith in ascertaining the number shipped and the fraud and misrepresentation, and apparently withiñ less than twelve hours after the signing of this agreement it brought the matter to the attention of the shipper and demanded a correction of the mistake that had been made. The evidence was abundant to justify the jury in their findings.

There is clearly nothing in this record which indicates a miscarriage of justice. The jury have heard all the evidence in the case and have seen all the witnesses and have found against the appellants on every question. When a jury find in such a case as this in favor of a railroad company, it is fairly safe to conclude that the evidence was ample and of the most convincing character, and, as it1 appears in the record here, it is clear to us that they committed no error in this case.

The judgment should be affirmed, and it is so ordered. Costs awarded in favor of respondent.

Stewart, C. J., and Sullivan, J., concur.-