The cars on which the potatoes were shipped belonged to the carrier whose line connected with defendant’s line at Davenport, and the custom of the companies was, when freight was to be received on defendant’s line for transportation over the line of the connecting company, for the latter to furnish the cars on which to load the same at the place of shipment, and the failure of defendant to deliver ears at an earlier daté for the shipment in question was occasioned by the failure of the connecting company to furnish them. The district court instructed the jury that, before plaintiff would be entitled to recover, he must prove either (1) that the station agent had express authority from defendant to make the alleged parol contract; or (2) that be was held out by defendant as possessing such authority; or (3) that defendant, with full knowledge of the facts, had ratified the contract. Defendant excepted to this instruction. It also objected to the evidence offered to establish the making of the contract by the agent, on the ground that his authority was not shown. The overruling of this objection, and the giving of this instruction, are now assigned as error.
It is contended that there was no evidence which had any tendency to prove, either that the agent had authority to make the alleged. contract, or that he was held out as having such authority, or that defendant had ratified the contract. In a former opinion filed in the case we sustained this view. A rehearing was granted, however, and upon a re-exam ination of the record we have reached the opposite conclusion. The agent, it is true, testified, in general terms, that he had
We are aware that what is here said is not in harmony with our holding in Wood v. Chicago, M. & St. P. R. Co., 59 Iowa, 196. We entertained such grave doubts, however, as to the correctness of our holding in that case, that we announced to counsel, when this rehearing was granted, that we would review the question upon the final hearing. Our conclusion is that that case, in so far as it holds that the
In the view we have taken of the question already discussed, the question whether there was any evidence of a subsequent ratification by defendant of the acts of the agent is not very material. But, without discussing that question, we may say that, in our opinion, there was evidence which fairly entitled plaintiff to have it submitted to the jury.
III. The district court refused to give an instruction asked by the defendant, to the effect that the duties and obiigations of a common carrier with respect, to the goods commence with their delivery to him, and that the delivery to him must be complete before he is charged with the duty of seeing to their safety. As an abstract proposition, the instruction is probably correct. But we think it is not applicable to the case made by the pleadings and evidence. Plaintiff does not complain that defendant was guilty of any breach of its duties as a common carrier after it received the property into its possession. Iiis complaint is that it violated its contract to receive and transport it at a particular time, and that it refused to receive it within a reasonable time thereafter, and that the injury resulted from this violation of contract and refusal to receive the property. The cars were sent forward by the first train after they were loaded, and it was not claimed that thereafter defendant was guilty of any wrong or negligence with reference to the property, and no question arose in the case to which the instruction was pertinent.
In the present ease, it was well known to the parties, when they made the contract, that, unless the potatoes should bo shipped at an early date, they would be liable to be injured or destroyed by freezing. The danger was one which would arise in the ordinary course of nature in this climate, and it must be presumed that the parties had it in consideration, and intended to guard against it, when they entered into the agreement. If defendant had received' and shipped the potatoes at the time agreed upon, or within a short time thereafter, the injury would not have occurred. Plaintiff bought the potatoes for the market to which they were after-wards consigned. He made efforts, between the seventeenth of October and the second of November, to dispose of them, but was unable to find a market for them. He made the best provision practicable for tlieir protection during that time. If those stored in the elevator and warehouse had been permitted to remain there during the winter, they would certainly have been frozen, and there was no other place at the station where they could safely have been stored. Under the evidence we think it was properly left to the jury to determine whether their exposure to the danger, and the injury they sustained, were the proximate consequences of defendant’s breach of the contract; and we also think that the finding of the jury on that question is fully
We deem it proper to say that this is not a second appeal in the case between the same parties in 59 Iowa, 196.
The judgment will be
Affirmed.