82 Iowa 199 | Iowa | 1891
The plaintiff claims that on the night of June 19, 1889, an engine of the defendant railway company ran over three of his colts, killing one, and causing the others to be killed ; that the colts were running at large on his farm, and escaped therefrom onto the railway of the defendant, where they were struck by the engine, in consequence of the failure of the defendant to maintain a sufficient fence at a point where it had the right to do so ; that the reasonable value of the colts was two hundred and ten dollars. On June 20, 1889, the plaintiff served upon the defendant a notice in writing of his loss and damage, accompanied by an affidavit as contemplated by séction 1289 of the Code. On the twenty-eighth day of that month, the adjusting agent of the defendant visited the plaintiff for the purpose of settling the liability of the defendant. At that
“Due J. A. Shaw, for value received, $210.
“S. S. Stackhouse,
“Adjusting Agent, C., R. I. & P. Ry. Co.”
And at the same time the plaintiff signed and delivered to the agent an instrument in writing, of which the following is a copy:
■Chicago, Rode Island & Pacific Railway Company, J. A. Shaw, Dr.
For two colts, 18 months old, English draught.$130 00
For one black filly, 20 months old, English draught. 80 00
$210 00
“ Killed three miles west of Centerville, Iowa, June 20, 1889; train number 14, engine number 20 ; defective fence. Killed on section 76, Southwest Division.
“ Centebville, Iowa, June 28, 1889.
“Received of Chicago, Rock Island & Pacific Railway Company the sum of two hundred and ten dollars, in full for above account.
“J. A. Shaw.”
The duebill given by the agent of the defendant, mot having been paid, this action was commenced August 8, 1889. The plaintiff contends that the duebill was not taken in payment of his claim, and that he is entitled to recover double the value of the stock killed, and he demands judgment for that amount. The defendant insists that the duebill was given to settle the claim -of the plaintiff, and that it is not liable in this action, for the reason that it is not founded upon the duebill. Evidence was submitted on the part of the plaintiff which tended to show that the allegations of his petition in regard to the value of the colts, the cause of their death, and the liability of the defendant therefor, weré true. The defendant then called its agent Stackhouse who testified to the giving of the duebill, and receipt and to the conversation which he had with the plaintiff at that time, The plaintiff then testified that the duebill was not accepted in payment of his claim, but as a memor.andum ; that nothing was said about taking that in full
Section 1289 of the Code provides, in regard to a corporation being liable for stock killed by reason of its failure to maintain a proper fence where the right to fence exists, that “if such corporation neglects to pay the value or damage done to any such within thirty days after notice, in writing, accompanied by an affidavit of such injury or destruction, has been served * * * such owners shall be entitled to recover double the value of the stock killed, or damages caused thereto.” The appellee contends that the giving of the duebill to bim by the agent of the defendant was not designed by either party to the transaction to operate as payment of the claim of the plaintiff, and, therefore, as the duebill was not paid within thirty days after the statutory notice was given, the claim. of the plaintiff for double the value of the stock killed was perfected by the lapse of time, and is not affected by the giving of the duebill.
The general rule undoubtedly is that the giving and accepting of a duebill or promissory note for an antecedent debt will not operate as a payment of such debt, unless it was so intended by the parties. Farwell v. Grier, 38 Iowa, 83; Carlin v. Heller, 34 Iowa, 256; Hall v. Smith, 10 Iowa, 45. But we do not think that rule is applicable to this case. Prior to the giving of the due-bill, the claim of the plaintiff was unliquidated. It had not been admitted by the defendant to be just. The
This action is not founded upon the duebill. The plaintiff attempted, by an amendment to his petition, to set it out, and demand a recovery thereon, but the amendment was stricken from the files, as not being germane to the original cause of action, and, therefore, presents no question for our determination.
We conclude that, upon the undisputed facts disclosed by the record, the plaintiff is entitled to recover only the amount of the duebill; that, under the ruling of the district court, from which the plaintiff does not appeal, this action is not founded upon the duebill, and, therefore, that the court below erred in directing a verdict for plaintiff, and in not directing a verdict for defendant. Nothing we have decided will preclude the plaintiff from bringing an action on the duebill.
For the reasons indicated the judgment- of the district court is reversed. ’