(dissenting in part). — I want to concede that the majority opinion presents on the whole an excellent analysis of this voluminous and complicated case. I agree with it .in. the main and am somewhat reluctant to find any fault with it. I can not avoid the conviction, however, that we are not justified upon this record in the partial reversal of the order of the trial court. I arrive *134at this conclusion from two or three points of view which I will suggest as briefly as I can.
I. The majority opinion holds that the trial court properly withdrew from the jury all items based upon transactions subsequent to July 27, 1904. In this view I concur. For the same reason I think the trial court properly directed a verdict as to the items preceding such date. I think the substance of the arrangement under which the defendant operated was essentially the same throughout the entire period. The prominent difference in the methods employed before July 27, 1904, and after-wards was that in the latter period the Iowa distance tariff was actually paid, and the amount so paid was applied as a credit upon the interstate rate, whereas in the earlier period full Iowa distance tariff to Valley Junction was actually charged, and the amount so charged was later applied as a credit upon the interstate rate in all cases where the hogs were destined into another state. The diminution was always made upon the interstate rate and never upon the Iowa rate. Where there was no interstate rate, there was no diminution or discrimination of any kind. The essential purpose of both methods was to obtain what is termed in the majority opinion as a “milling in transit rate,” for interstate shipments; the full Iowa distance tariff to Valley Junction being in all cases charged to the persons for whose benefit the shipment Was made. The charge was a valid liability. There was therefore, in all cases, a period of time after the arrival of the shipments at Valley Junction where there had been no violation of the Iowa law. If there was any violation of either the state or the federal law, it arose afterward in connection with the reshipment to points without the state. Clearly, such reshipment was interstate shipment. If the interstate rate collected thereon was reduced by the amount already paid or charged as-the Iowa distance tariff, the legality of such act must be determined under the fed*135eral statute and not under the Iowa statute. There is one feature of the record at this point which' has not received mention in the majority opinion. All the interstate shipments made from May, 1901, to August, 1902, were made pursuant to an arrangement between the defendant and Kingan & Co. of Indianapolis. So far as the defendant is concerned, the arrangement between it and Kingan & Co. was precisely the same as that entered into with J. P. Squires & Co. in 1904. Prank Dodson was the purchasing agent for Kingan & Co. for the period mentioned, whereas Compton was the purchasing agent for Squires & Co. The contract between Kingan & Co. and its purchasing' agent was somewhat different in its terms from the contract between Squires & Co. and its purchasing agent. However, the contract in each such case was a contract between the principal and his agent. But the relation of the defendant railroad company was precisely the same as to each principal. Prom August 17, 1902, to March 1, 1903, no hogs were shipped from Valley Junction. Prom March 1, 1903, to March 1, 1904, Compton & McRae operated under the same arrangement with the defendant as Kingan & Co. had done, .They were local buyers. But the arrangement entered into was applicable only to interstate shipments. This arrangement was terminated March 1, 1904. Prom that date no hogs were shipped from Valley Junction until the arrangement was entered into with Squires & Co, in July, 1904. Prior to the commencement of this suit, the plaintiff served a written demand upon the defendant in accordance with the requirements of section 2130 of the Code of 1897. The discriminations charged in that demand were confined to those made in favor of Squires & Co. and Compton & McRae. No complaint was made therein as to any discrimination in favor of Kingan & Co. or of Prank Dodson.
II. It is held in the majority opinion that the plaintiff is in.no position to recover as for freights paid and *136charged by it to the shipper. In other words, that the defendant in such a case is liable, if at all, to the person in whose behalf the freight was paid. With this view I agree. It is said, however, that there were some instances where the plaintiff company paid the freight in its own behalf, and that as to such items there should be a reversal of the order of the trial court. I think the record before us does not justify a partial reversal upon that ground. Mr. - Agar, the general manager of the plaintiff company, testified as follows:
The prices we made to our shippers were based on the rates at Des Moines. Take, for instance, $6.50 a hundred pounds; a car weighing 20,000 pounds would come to $1,300. If the rate in was thirteen cents a hundred, that would make $26. I would pay the freight to the railroad and I would send the shipper a check for $1,300 less $26, and the amount that I actually paid for the hogs was the sum of these two items, or $1,300. The number of hogs bought on the track at the various places of origin was small in comparison to the other method of buying; where they were so bought, the'in-freight was paid by the plaintiff, the freight following. It would not be advanced. It would be computed, and we would pay it, and the price paid the shipper would be based upon where the hogs originated, and in that instance the cost would be made up of the two items. Exhibit 162 is what we call our account sales. The number inserted under the proper heading shows the number of animals. The notation ‘2 CRIP’ means cripples. This with the 65 is footed up to make the 67. There was one dead. Under the ‘deduct’ is $2 deducted. This was probably on account of something wrong with one of the hogs. The price $4.15 is for the 65, for the sound hogs. Eor the crippled hogs the price is $3.25. There is something added on account of the dead hogs. This makes $815.82. Freight is opposite the words, ‘less freight,’ $15.55. This amount $15.55, the plaintiff paid the railroad, and $800.27 was remitted to the shipper. The plaintiff made no payments on account of these hogs further than the two payments that have been referred to, one to the railroad and *137the other to the shipper; but it did make these twx>. This illustrates the way in which the payments were made when the hogs were bought at a price at our yards. Taking Exhibit 163, the number of hogs is 127, indicating two ears. I do not know what the words, ‘less two stopped at Valley Junction/ mean. In this account sales, we find the memorandum, ‘we pay/ and the freight is $43.61; in that case it is added. The amount, $2,705.24, was paid by the shippet and the freight, $43.61, was paid to the railroad company. This illustrates the way the account sales were made up, where the memorandum bore the notation ‘we pay.’ These are 'the cases where the hogs were bought at a price’ at point of origin.
Talbot, one of the purchasing agents of the plaintiff, testified as follows:
The prices I gave them were prices delivered at Deg Moines, and I bought the hogs delivered there. Freight was deducted from the proceeds, but I do not know who paid it. I made out a bill showing the freight deducted. The shipper does not pay it, and I don’t know who does pay it unless the packing house does. If a man shipped a carload of hogs, and we agreed to pay him 4% cents we remitted to him on the basis of 4% cents after deducting the amount of the freight on the hogs from the point of origin to the Agar Packing Company.
Only two- instances are made to appear in this record where the plaintiff purported to pay the freight on its own account. These two items amount to $63. In view of the fact that this suit is brought for $350,000 upon more than 7,000 items, these two items become comparatively insignificant. The appellant has not' asked a reversal upon this ground. There is also a feature of the record which presents a very substantial reason why a reversal should not be had for these small items. The written demand served by plaintiff upon defendant preliminary to the suit to which reference has already been made contains the following tender of credit: “The undersigned further notifies you that the amounts heretofore paid by you to *138the -undersigned on account of such discrimination may be credited by you upon the amount hereby demanded; such credit is not now made by the undersigned because the undersigned is not advised of the amounts of the payments so made by you.” The foregoing provision has reference to a certain contract between plaintiff and defendant in relation to interstate shipments of manufactured products which contract is referred to and set out in part in the majority- opinion. It appears from the testimony of Mr. Agar that the plaintiff company received from the defendant in adjustments under this contract not less than $10,000 nor more than $20,000. This is the credit which is tendered in the written demand as above indicated. In view of this voluntary tender which appears in the record, it ought to be deemed sufficient to absorb the small items upon which liability might otherwise be predicated.
III. I am not satisfied with the discussion of the majority on the subject of the statute of limitations. I agree that the statute of limitations is an affirmative defense and must be pleaded as such. I may add that it is governed by the same statute that applies to other affirmative defenses. If the petition shows upon its face that the cause of action is barred by the statute of limitations, the plea of the statute may be interposed by demurrer. A failure to demur, however, does not waive it under 'our present statuté, and it may be interposed by answer. If the petition upon its face does not show the cause of action to be barred, then of course no demurrer will lie. In the case before us the petition shows upon its face that a par-t of the cause of action would be barred by the statute of limitations except for the affirmative allegations in the petition pleaded in avoidance of such bar. Clearly a demurrer to the petition would not lie. Would an affirmative defense based whollv upon the statute of limitations lie to such petition ? If so, we are. driven into an illogical position. The question is governed by sec*139tions 3563, 3566, and 3629. Section 3566 provides what an answer shall contain. Only subdivision 4 thereof is applicable to the plea of the statute of limitations. It provides as follows: (4) “A statement of' any new matter constituting a defense. . . Under this section the statute of limitations is pleadable as a distinct and affirmative defense. If the statute as pleaded does not present of itself an affirmative defense, there is no statutory provision for pleading it at all. Section 3629 provides for a defense “which admits the facts of the adverse pleading but by some other matter seeks to avoid their legal effect.” This is confession and avoidance. Turning now to the petition, it recognized the apparent bar of the statute of limitations and pleaded affirmatively in avoidance thereof. On this question, the petition itself is in the nature of a confession and avoidance. Suppose the defendant had undertaken to plead the statute of limitations as a separate defense in its answer, what affirmative matter could it aver? It could aver that more than two years had elapsed after the accruing of the cause of action and before the commencement of this suit and that the cause of action was therefore barred. Could it be said that this plea presented a good defense against plaintiff’s cause of action as pleaded in the petition? Suppose the plaintiff should demur to such division of the answer on the ground that the facts pleaded in such defense in support of the plea of the statute were fully avoided by the allegations of the petition, and that the allegations of such division of the answer presented therefore no defense to the petition. Is there any logical'escape from saying that such demurrer would be good? Where a plaintiff chooses to render his petition invulnerable to a plea of the statute of limitations either by demurrer or answer, by alleging affirmative matters in avoidance thereof, he ought not to be permitted to say that the question may not be raised on the trial at the close of his evidence, if he fails to *140prove the avoiding facts. Even though he fail to prove the avoiding facts, his petition stands as invulnerable as ever as a question of pleading. In this case the defendant raised the question of the statute of limitations at the close of plaintiff’s evidence in the only manner logically open to it. The petition itself tendered issue upon the avoiding facts, and plaintiff failed to prove them. Defendant’s motion was in the nature of a demurrer to the evidence. The failure of the evidence did not entitle him to demur to the petition, for that remained as unassailable as before. If the plaintiff had withdrawn his allegations as to fraudulent concealment upon his failure to prove the same, a somewhat different question would be presented.
The fact remains that the plea of the statute of limitations was specifically urged by the defendant as a ground for a directed verdict in the court below as soon as the plaintiff rested its case, and that plaintiff so rested without making any proof of the allegations which rendered its petition invulnerable to that plea, either by demurrer or affirmative defense. The majority opinion holds, in effect, that under no circumstances can the statute of limitations be made available in this way. To so hold is to my mind both technical and illogical, although not without support in authority. Nor are we required to so hold by any mandatory provision of the statute. Nor can I find anything in our past holdings to cover such case as this. The majority opinion treats the allegations of the petition charging fraudulent concealment as mere surplusage, pleaded inadvertently or otherwise. If they can be deemed as such, of course they need not be proved. But it is too plain for argument that these allegations were not pleaded inadvertently, nor can they be deemed as surplusage. They were manifestly pleaded for the express purpose of preventing a plea of the statute of limitations. They served the intended purpose of the plaintiff. On what logical theory can they be treated as *141surplusage after their work is fully done? It was held in McDonald v. Bice, 113 Iowa, 44, that the defense of .the statute of limitations" “is a confession and avoidance.” How could the defendant confess and avoid the petition as drawn?
In Borghart v. Cedar Rapids, 126 Iowa, 317, it was held that: “The bar of the statute must be made an issue, and it seems hardly necessary to say that a motion to direct a verdict is necessarily based on the issues as previously joined and the evidence bearing thereon. By failing to make the statute of limitations an issue in the case, that defense was waived.” In the case before us, the plaintiff voluntarily tendered the issue and confined it to the avoiding facts pleaded by itself. If in this state of the pleadings we still apply the general rule that the statute of limitations must be affirmatively pleaded by the defendant, we are adopting an illogical position without any necessity for it.
Turning to the authorities, they are in much confusion on the subject of pleading in the presence of the statute of limitations. In some jurisdictions it has been held that, when a plaintiff brings his action after the expiration of a statutory period of limitation, it is incumbent upon him in the first instance to plead the avoiding facts in his petition and to prove the same on the trial. Humphrey v. Carpenter, 39 Minn. 115 (39 N. W. 67); Morrill v. Little Falls, 53 Minn. 371 (55 N. W. 519, 21 L. R. A. 174); Westervelt v. Filter, 2 Neb. (Unof) 731 (89 N. W. 994); State Bank v. Frey, 3 Neb. (Unof.) 83 (91 N. W. 239); Newman v. Linderholm, 68 Neb. 364 (94 N. W. 617). On the other hand, it has been held in other jurisdictions that it is not proper to anticipate in the petition the defense of the statute of limitations; and that, if avoiding facts be pleaded in the petition, they will not avail the plaintiff, but that the same, in order to be available, must be pleaded in the reply. Concannon v. Smith, 134 *142Cal. 14 (66 Pac. 40); Wall v. Chesapeake, 200 Ill. 66 (65 N. E. 632); Gunton v. Hughes, 181 Ill. 132 (54 N. E. 895). In some jurisdictions it has been held that the plea of limitations can not be interposed by demurrer where the statute provides that it shall be raised by answer. Satterlund v. Beal, 12 N. D. 122 (95 N. W. 518); Hedges v. Conger, 10 N. Y. St. Rep. 42; Grogan v. Valley Co., 30 Mont. 229 (76 Pac. 211). In other jurisdictions it has been held, under a like statute, that the term “answer,” as used in the statute, will be construed to include any pleading presenting an issue of fact or law, and that the plea of limitation may therefore be interposed either by answer or demurrer or by a special exception. Hopkins v. Wright, 17 Tex. 30; Smith v. Fly, 24 Tex. 345 (76 Am. Dec. 109); Howell v. Howell, 15 Wis. 55; Motes v. Gila Valley, 8 Ariz. 50 (68 Pac. 532); Rivers v. Washington, 34 Tex, 267; Sheldon v. Keokuk & Northern (C. C.) 8 Fed. 769. There are many exceptional cases wherein the general rule as to pleading the statute of limitations has been held nonapplicable. These are cases where the defendant is found not to be in fault in failing to plead the statute. Dreutzer v. Baker, 60 Wis. 179 (18 N. W. 776); Nelson v. Cooper, 108 Fed. 919 (48 C. C. A. 140); Gottschall v. Melsing, 2 Nev. 185; Dean v. Tucker, 58 Miss. 487; Bromwell v. Bromwell, 139 Ill. 424 (28 N. E. 1057); Smith v. Cuff, 3 Nova Scotia, 12.
In the last case cited, the court refused to enter judgment against a defaulted defendant served by publication, upon a claim which appeared on its face to be barred by the statute of limitations. ' As will be seen from the examination of the foregoing authorities, the subject of pleading as relating to the statute of limitations has been churned into much confusion and inconsistency. This is to be accounted for in part by the fact that in an early day the courts were disposed to look upon the defense of the statute of limitations as unconscionable. They there*143fore throttled it when they could and treated it as fully waived unless the defendant set it up promptly and accurately. It was not permitted to set it up even by amendment. This condemnation has long ago passed away, and this defense is now recognized as having its own substantial merit. But the old precedents have continued to obtrude themselves into the decisions, and this has resulted in excessive technicality without any apparent reason therefor. There is nothing in, our own statute nor in our previous decisions which puts this defense in dishonor or subjects it to any rule which is not applicable to any other affirmative defense.
There is a further consideration at this point that ought not to be overlooked. We are awarding a partial reversal as to a few items. We are holding also that these items are in truth barred by the statute of limitations, but that the defendant has failed to claim the benefits of the statute in a proper way. The ease must therefore be remanded to the trial Court for further hearing. Will not the defendant then be entitled to avail itself of the statute of limitations by appropriate amendment? Must we now close our eyes to the self-evident and go through the mere form of a reversal in order to maintain a hard and fast rule as to the method of pleading the statute of limitations ?
In view of the implied confession and avoidance pleaded in. the petition, I think the defendant should be deemed to have sufficiently raised the plea! of the statute of limitations by his motion at the close of the evidence, and that the plaintiff was in no manner prejudiced by the method adopted.