the right of way over and across the real estate hereinbefore described, and no right of way was ever conveyed across said land by any one owning said land at any time.

"8. That the value of said right of way over and across said land is fixed by the parties hereto at $175.

"9. That said St. Louis, Kansas City & Northern Railway Company and St. Louis, Ottumwa & Cedar Rapids Railway deny that they or either of them are liable to said Donald for the value of said right of way, and deny that said Donald can recover of them or either of them.

"10. Now, it is further agreed that the question of the liability of said St. Louis, Kansas City & Northern Railway Company and St. Louis, Ottumwa & Cedar Rapids Railway Company to said Donald, for said right of way, shall be submitted to the circuit court of Appanoose county, Iowa, at the August term, 1878, on the agreement of facts herein stated, and no other evidence be submitted or admitted; that if said court finds that said companies or either of them are liable, then judgment shall be entered against both of said companies for the sum of $175 and costs, but no execution to issue thereon until said Donald conveys to said companies, or to such one of them as they may elect at the time judgment is rendered, the right of way over and across said real estate 100 feet wide, being 50 feet on each side of the center of the railroad track as now constructed on said land-the title to said right of way to be free and clear of all liens; that in case said court finds said companies are not liable, then judgment shall be rendered against Donald for all costs.

"11. It is expressly agreed and understood that by this agreement neither of the parties hereto waive their right of appeal to the supreme court, and that each party hereto may appeal from the judgment rendered in this case to the supreme court of Iowa, in the manner and form as required to appeal cases to said court.

"12. That said railroad (St. Louis & Cedar Rapids) was constructed over and across said land without the knowledge or consent of the said Mathias Gregory, and without any agreement with him in regard to the same.

"13. That neither the St. Louis, Ottumwa & Cedar Rapids Railway Company, nor any of the subsequent owners or lessees, or any other corporation or person, ever paid either the said Mathias Gregory or the plaintiff, John Donald, anything for the right of way over said land, or ever agreed to pay anything for said right of way; that the defence of the statute of

limitations against plaintiff is waived, if any such defence exists, and for the purpose of the trial of this case it is agreed that this action be deemed as pending since March 1, 1878.

There appear to have been no pleadings in the case, and it was submitted upon the agreed statement of facts which presented the claim of plaintiff for relief. The statute contemplates the presentation of cases for decision in this manner without pleadings.

2. The plaintiff claims to recover the value of the right of way occupied by defendant. The occupancy was commenced and continued without right. The defendants are mere trespassers, and the land-owner may maintain an action against them to recover damages for the occupation of the land. Daniels v. The C. & N. W. R. Co. 35 Iowa, 129; S. C. 41 Iowa, 52; Conger v. The B. & S. W. R. Co. Id. 419; Hibbs v. The C. & S. W. R. Co. 39 Iowa, 340; Ruppert et al. v. The C. O. & St. J. R. Co. 43 Iowa, 490. The plaintiff seeks in this action to recover the damages to which he is entitled under the law.

3. The defendant insists that the right of action accrued to Gregory (plaintiff's grantor) when the land was first taken, the trespass first committed, and that as this right of action has not been assigned to plaintiff he cannot maintain the suit; but as the railroad company was a trespasser when plaintiff acquired the land, and continued to occupy it as such, the defendant is liable in this action for its trespass upon plaintiff's property after he became the owner. Plaintiff may recover, under the cases cited, for the value of the land appropriated, and other damages. These damages are for injuries sustained by plaintiff himself, and do not cover the injuries sustained by plaintiff's grantor. It is not important to inquire what were the rights of plaintiff's grantor. They are not involved in this action.

Affirmed.

Filed December 4, 1879.

In January, 1873, plaintiff, a manufacturer of castings, and defendant, a manufacturer of school furniture, entered into a contract by which plaintiff was to furnish defendant all the castings he should want during the year 1873, at a certain price, payable cash on delivery. In May defendant formed a copartnership with another for the purpose of manufacturing school furniture, and thereafter the business was carried on by the v3-30 (no. iv) (465)

firm. The firm never procured any castings from plaintiff. Held, in an action for damages for not taking castings under such contract, that it was not binding on the firm, but applied only to defendant's individual business; that defendant had a right to discontinue his individual business at any time, and that he did so in forming the copartnership; that the fact that plaintiff incurred expense in preparing for the manufacture of these castings, or that defendant made a general statement, at the time of making the contract, of the amount he would probably want during the year, would not change the construction to be given the contract.-[ED.

Appeal from Wapello circuit court.

Action to recover for damages alleged to have been sustained by plaintiff by reason of the failure of the defendant to take and pay for, certain castings according to the terms of a certain contract existing between the parties.

In January, 1873, the defendant was engaged in the manufacture of school furniture, and the plaintiff was engaged in the manufacture of castings for school furniture. They accordingly entered into a contract, whereby the plaintiff agreed to make for defendant all the castings he should want for the year of 1873-the contract being in the following words:

"DES MOINES, January 15, 1873.

"I hereby agree to make all the school-seat castings that A. S. Vorse may want during the year 1873, at six cents per pound, except ink-well covers, and them at three cents each, deliverable on the cars in Eddyville, Iowa. Payments cash on delivery.

[Signed,]

"P. E. DRAKE. "A. S. VORSE."

Under this contract the plaintiff supplied the defendant with such castings as he ordered, (though not always of the proper quality,) until sometime in May, when defendant entered into a partnership with one Goodhue, for the purpose of carrying on the business of manufacturing school furniture; the arrangement between them being that Goodhue should purchase material and superintend the work, while the defendant should travel for the purpose of making sales. From that time the defendant refused to receive any more castings from the plaintiff, and none were received by him nor by the firm of which he was a member; that plaintiff claims that if defendant had taken and paid for all the castings he wanted, in accordance witn the terms of the contract, she would have made a net profit of $3,000 more than she did make, and she brings this action to recover that amount.

The case was referred to a referee, who reported that he found that the castings provided for in the contract could

have been made at four and one-half cents per pound; that defendant Vorse would have used in his business during the year 1873, if he had not entered into partnership with Goodhue, about $2,600 worth of castings, and that plaintiff was damaged by reason of the refusal of the defendant to receive castings from plaintiff in the sum of $532.75."

He further reported that he found that "some of the castings furnished by plaintiff to defendant were not of so good material nor as well finished as the defendant had a right to have furnished him under the contract, and that he should be allowed the sum of $50 as damages.

He reported, as a conclusion of law, that the plaintiff was entitled to recover $482.75. The defendant excepted to the findings of fact and the conclusion. The court overruled the exceptions and rendered judgment upon the report. The defendant appeals.

Barcroft, Given & McCaughan and W. W. Corey, for appellant.

Stile & Burton and R. W. Boyd, for appellee.

ADAMS, J.-The abstract does not purport to contain all the evidence, and the findings of fact cannot be reviewed. We may, however, consider whether, under a proper construction of the contract, the conclusion reached can be justified. Counsel differ widely as to the obligation which it imposes upon the defendant. It binds the plaintiff to make what castings the defendant may want. It does not expressly bind the defendant to anything except to pay in cash on delivery the prices specified. But, conceding that it it bound him to order and take of the plaintiff all the castings he should want, it could not, we think, have the effect to preclude him from entering into a partership, nor would it become obligatory upon the firm. It was certainly the defendant's privilege to discontinue business at any time when it should appear to him that his interest demanded it, and that, too, without becoming liable to the plaintiff in damages. He did discontinue business upon his individual account. After that he did not individually want or need any castings, and as the firm was was not bouud to take any we do not think that the defendant became liable.

There were two findings of fact evidently deemed material by the referee, which we have not set out. One was, in effect, that the plaintiff incurred expense for the special purpose of making the castings. But we cannot think that the fact that she incurred such expense should be allowed to

affect the construction of the contract. The necessity of incurring such expense, if there were no general demand for such castings, would have rendered it prudent for the plaintiff to require of the defendant a contract to take and pay for enough castings to justify the expenditure. But we cannot interpolate provisions on the ground that the plaintiff's interest demanded them, nor interpret the terms used in the light of her interest. It was also found that at the time the contract was executed the defendant made a definite statement to the plaintiff of the amount of castings he should probably need. Ii is not claimed, however, that he was bound to take the amount mentioned. The plaintiff seeks to recover simply upon the written contract. In our opinion the court erred in rendering judgment upon the report, and the case must be reversed.

Filed December 4, 1879.

In an action at law to recover real estate, claimed under a railroad. grant, and which had been certified by the commissioner of the general land office, approved by the secretary of the interior, held, that it could not be shown by parol, for the purpose of defeating said grant, that the land was swampy and covered by the swamp-land grant of congress; following French v. Fyam, 93 U. S. 109.-[ED.

Appeal from Clinton district court.

Action at law to recover real estate. A demurrer to the third division of the answer was sustained, and the defendant appeals.

A. R. Cotton, for appellant.

E. S. Bailey, for appellee.

SEEVERS, J. The plaintiff claims title under the acts of congress known as the railroad grant. The evidence of title attached to its petition consists of a certificate of the commissioner of the general land office, approved by the secretary of the interior. In the third division of the answer the defendant claimed to be the absolute owner of the land in question under the act of congress known as the swamp-land grant. It was not averred or claimed he had a patent or any other evidence of title emanating from the government, except the act of congress, and he claimed the right to prove by parol the swampy character of the land, and thus defeat the title of the plaintiff. The demurrer was on the ground,