suant to contract. These facts amount to an acceptance of the church in November or December, 1874. The contract provides for the payment for the church, when the building is accepted, in notes of the congregation at the time of the contract in the hands of the defendant. A failure to pay in the notes of the congregation upon the acceptance of the building, as provided in the contract, would render the plaintiff's claim a money demand. After his claim became a money demand, he would be under no obligation to accept payment in notes. The sixth division of the answer may have been properly stricken out for two reasons: First, it does not allege when the tender of the notes was made; second, it does not allege that the defendant made a tender of notes of the congregation, which the defendant had in his hands when the contract was made. Under the contract the plaintiff was not under obligation to accept notes not in defendant's hands when the contract was made. It is true the plaintiff might have made a motion for more specific statement in these respects, but he was not under obligation to do so. This division of the answer, as it stands, presents no defense, and it was competent for the plaintiff to move to strike it out. As the record does not disclose the grounds of the motion, we cannot say that the court erred in sustaining it.

2. The charge of the court, by consent of the parties, was given to the jury orally and taken down by the short-hand reporter. It contains the imperfections usually incident to an oral charge, and furnishes a striking illustration of the great superiority of a written over an oral charge. Notwithstanding a lack of clearness in some particulars, and some inaccuracies of expression, which have called forth the criticisms of defendant's counsel, we think that the charge, in the main, reflects the law with reasonable clearness. Under the contract the plaintiff was to have $1,215 for the erection of the church. In addition to this the plaintiff claims $200 for extra work. The defendant does not claim that he has paid more than $725, but he claims that the plaintiff agreed to accept the sum paid in full satisfaction of his claim. Upon this branch of the case the court instructed the jury as follows: "The only settlement by which parties are bound comes in a disputed claim. When parties dispute the claim, and then come to an adjustment as to the amount due, and make a payment, the party is bound by the settlement; but where there is no dispute between the parties as to the justness of the claim or the amount due, and when each agrees

upon the amount that is due, then agreement to take a less sum than the amount claimed as really due is not binding. The party is bound to pay all he did pay and to pay more besides. But when there is a dispute between the parties, if it is clearly understood and agreed upon, then it becomes binding upon the parties. But if the amount due is in dispute, then simply an agreement to take a less amount does not amount to an agreement upon the settlement, and is not binding in the agreement." The giving of this portion of the charge is assigned as error. The propositions involved in this instruction are that the payment of the part of an admitted debt will not support a promise to forgive the remainder of the debt, and that simply an agreement to take less than the amount due of a disputed debt, without payment, is not binding. These we think are correct propositions of law. See cases cited in Hammond's Digest, p. 218, § 21; Id. p. 14, § 5.

3. The defendant testifies that some time in November or December he tendered notes of the congregation to Kimball & Mitchell, to whom the plaintiff had given an order on defendant for payment. In reference to this tender the court instructed the jury as follows: "In order to constitute a tender in this case there should have been an offer of the notes in payment. As I said a while ago, a tender after the time the payment should have been made is not a binding tender-not so as to bind the plaintiff in this case-as it became a money demand as soon as the defendant failed to deliver the notes at the time specified in the contract." It is urged that this instruction assumes the fact to be that the defendant did not make the tender until after the building had been completed and accepted, and the claim had become a money demand; whereas it is a question of fact for the jury whether or not the tender was made in time. We think the instruction is vulnerable to this objection. At least the jury may have understood from the instruction that they were directed that the tender was too late and could not be considered. We discover no other material error in the case. For the error in the instruction above named the judgment must be reversed.

"

F. W. HOFFBAUER, Appellee, vs. THE D. & N. W. Ry. Co.,

Appellant.

Filed October 28, 1879.

Where, before entering the cars, a party has a reasonable opportunity to procure a ticket and fails so to do, a regulation of the company requiring the payment of an extra charge of ten cents is allowed by chapter 68 of the Laws of the Fifteenth General Assembly, and the reasonableness of such regulation is not a question for the jury. Plaintiff having an opportunity to procure a ticket, and failing so to do, got on to defendant's train to ride a distance of four miles. After the train started he tendered the eonductor the sum of sixteen cents, the price of the ticket for that distance. The conductor took the money, demanding ten cents more, as required by the regulation of the company, which, being refused, the train was stopped, and assistance called to expel the plaintiff. Rather than be put off he offered to pay the extra ten cents, which was refused and he was expelled from the train. The court instructed the jury that if plaintiff tendered and the conductor received and retained the sixteen cents, he was not justified in putting plaintiff off; and, further, that if plaintiff before his expulsion tendered the full fare, including the extra charge, that such expulsion was wrongful. Held, erroneous.-[ED.

Appeal from Delaware district court.

The plaintiff took passage on the defendant's cars at Delhi for Delaware Center, a distance of about four miles, and after riding a small portion of the distance was forcibly removed from the cars by the conductor. He brings this action to recover the damages which he alleges that he sustained by reason of the expulsion. The evidence in regard to the circumstances of the expulsion is somewhat conflicting, but according to the testimony of the plaintiff the facts were as follows: He went aboard the cars without procuring a ticket, his failure to procure a ticket resulting from the fact that he arrived at the station but a short time before the train started, and that short time he consumed in conversation with a person with whom he had business. When the conductor called for tickets the plaintiff tendered sixteen cents, the price of a ticket, and the conductor received it, demanding, however, ten cents more, being the extra charge where no ticket is procured. This the plaintiff declined to pay. The conductor, after some altercation with him in regard to the extra charge, rang the bell and stopped the train, and called in the brakeman to assist in putting him off. The plaintiff, rather than be put off, offered to pay the extra ten cents, but the conductor refused to receive it and expelled him from the cars. There was a trial by jury, and a verdict and judgment were rendered for the plaintiff. The defendant appeals.

Grant & Grant and Peters & Heath, for appellant.
McCenery & O'Donnell, for appellee.

ADAMS, J. 1. The court instructed the jury that "every railroad company may charge one rate of fare to those passengers who purchase tickets before taking their seats in the cars, and exact an additional sum of those who neglect to do so, and such a regulation is a reasonable one. The reasonableness of the regulation is a question of fact for the jury to decide under all the circumstances of the case.

The appellant insists that the court erred in instructing the jury that the reasonableness of the regulation was a question for them to decide. The different parts of the instruction do not seem to be consistent with each other. If the regulation were reasonable, as a matter of law, it was not a question of fact for the jury. But no question, we think, arose in regard to the reasonableness of the regulation. The regulation is allowed by statute. Chapter 68 of the Laws of the Fifteenth General Assembly. In our opinion the appellant's objection to the instruction is well taken. There might indeed be a question as to whether the facts were such in a given case that the regulation could be properly enforced. The statute provides that an extra charge of ten cents may be made where a ticket might have been procured within a reasonable time before the departure of the train. But in this case there is no pretence that a ticket might not have been procured within such time.

2. The court instructed the jury in substance that if the plaintiff tendered sixteen cents, and the conductor received it and retained it, he was not justified in putting the plaintiff off the cars. The giving of this instruction is assigned as error. The train had started, and a part of the journey of four miles had been passed over when the conductor demanded of the plaintiff the payment of fare. The company was entitled at least to fare for the distance which it had carried him, at the rate of four cents per mile. It was entitled also to ten cents as an additional charge allowed by statute in such case. Whether the plaintiff rode a mile and a half or the distance which six cents would pay his fare, the evidence does not show; but, even if it showed that he had not rode that distance, we do not think that the instruction could be approved. The plaintiff was certainly not entitled to be carried more than a mile and a half; but the plaintiff did not apply to be carried simply that distance, and probably did not desire to be. In the absence of any contract between the passenger and the company it is proper for the company to

put the passenger off as near the starting point as possible, provided the place is otherwise suitable.

In this case there was no contract. The implied contract arising from the plaintiff taking a seat in the cars had been broken by his refusal to pay. No contract arose to carry plaintiff to the end of the first mile and a half, because the money tendered by plaintiff and received by defendant was neither tendered nor received with such understanding. It may be, if the plaintiff was carried less than a mile and a half, that the defendant should have refunded something; but that objection did not arise until the plaintiff's journey had been terminated, and even then we think that the defendant should have a reasonable time to ascertain the distance traveled, and make the proper change.

3. The court further instructed the jury, in substance, that if the plaintiff before his expulsion tendered the full fare, including the extra charge of ten cents, then his expulsion was wrongful. The giving of this instruction is assigned as error. The defendant was entitled to full fare upon demand. The moment the plaintiff declined to pay it the defendant was released from all obligation to carry him upon that train. Stone v. Chicago & Northwestern R. Co. 47 Iowa, 82; O'Brien v. B. & M. R. Co. 15 Gray, 20. The rule that a passenger may test the regulations of the company and the firmness of the conductor by refusing to pay full fare, and still save himself from expulsion by tendering full fare after expulsion had commenced, is not only uncalled for for the just protection of the recusant passenger, but would tend to encourage a practice which, if indulged in, would interfere with the convenience of the company, and the dispatch and quiet to which other passengers are entitled. In giving the instruction we think that the court erred.

Reversed.

C. H. HEMPSTEAD, Appellee, vs. THE CITY OF DES MOINES,

Appellant.

Filed October 28, 1879.

Under section 469, Code, a city is liable for damages caused to property by change of grade, whether such damages result from direct injury to the property itself, caused by negligence of the city, or by a general diminishing of the value; and in determining the question of damages the whole property, including all improvements made before and after the grade was established, must be considered. Improvement on the street referred to in said section contemplates improvements upon lots on the (123)