— The plaintiffs, in their petition, state that on the 26th day of January, 1859, and at the city of Dubuque, they entered into a written contract with the Dubuque and Pacific Railroad Company, by which they relinquish their claim of $250 for borrow land in the construction of said road, in consideration of which the company covenanted to construct a switch in connection with their railway track, near the village of Manchester, and to take off with their cars whatever freight plaintiffs should have for transportation at their warehouse, to be built near said side track. The switch and warehouse were severally built, and freight carried off for a given period as per agreement, when a decree of foreclosure was rendered against the Dubuque and Pacific Railroad Company, for some seventeen hundred thousand dollars, to satisfy which, the railway, with all its franchises and appurtenances, was sold to the defendants in this suit. The plaintiffs claim that in making this purchase the defendants assumed to carry out the contract and obligations of the old company, but had failed to do so, and now refused to leave their cars and take off their freight which they had for shipment, as stipulated in the agreement above specified, to their great damage, &c.
The answer first denies any undertaking or engagement on the part of the defendant to carry out and perform the terms and conditions of the contract set up in the plaintiff’s petition, as having been made with the Dubuque and Pacific Railroad Company. Secondly, the answer sets up some *135special matters in relation to plaintiffs’ carelessness in the treatment and management of the freight cars left to be loaded and unloaded for their benefit on said side track, to the effect, for instance, that the plaintiffs had negligently left the freight cars standing upon the side track so near to the main track that one or two collisions had taken place, and there was danger of others, and that the plaintiffs were unwilling to become responsible for injuries that might thus result from such negligence. Upon motion, this special matter was stricken from the record, and we think properly so. It was not pleaded as a set-off or counterclaim, nor was it stated in such a manner as to constitute a defense in bar to the plaintiffs’ action. Yet the defendants excepted, took their appeal, and assign the ruling of the court on said motion as a ground of error.
On the trial of the cause afterward, before the court, without a jury, the defendants were permitted to introduce evidence to prove that part of the defense which had been thus stricken from the files, to which the plaintiffs excepted, and now urges the same as error. We can discover no good reason why this was done, and of course we believe it was irregular; but the record shows affirmatively that no use was made of the evidence by the judge trying the cause, and we conclude, therefore, the plaintiffs received no prejudice thereby. It is distinctly stated by the court, in his judgment, that he decided against the plaintiffs upon the issue made by the defendants’ denial of the allegations in their petition.
The only other grounds of complaint by the plaintiffs, are, that the court erred in holding that the defendants were not bound under their purchase of said railroad and its franchises, to carry out the contract which they claim had been entered into, as stated in their petition, with the Dubuque and Pacific Railroad Company. The only evidence offered upon this point is the conveyance from the *136last named company to tbe defendants, and we bave no hesitation in bolding that the plaintiffs’ claim derives no support from that instrument.1
Judgment affirmed.
The decree, pursuant to which the conveyance was made, contained the following order:
That the complainants, in taking and acquiring the absolute right and title in said property, namely, the Dubuque and Pacific Railroad, its franchises, right of way, depot grounds and buildings, rolling stock, lands granted by Congress to aid in constructing said road, remaining undisposed of, and other property mentioned in said mortgages, shall take the same, to be by them conveyed, in conjunction with the Dubuque and Pacific Railroad Company, to the Dubuque and Sioux City Railroad Company, in accordance with the terms and conditions hereinafter set forth. And the Dubuque and Sioux City Railroad Company shall have and hold the lands which were granted by Congress to the State of Iowa, to aid in building said road and branch, and by the State of Iowa to the Dubuque and Pacific Railroad Company, subject to the same rights and obligations, and upon the same terms and conditions as the same were held by the Dubuque and Pacific Railroad Company.
The habendum in the deed is as follows:
Now, therefore, in consideration of the premises, the said trustees, Morris K. Jesup, Platt Smith, William W. Hamilton and Hermann Qelpecke, and the Dubuque and Pacific Railroad Company, hereby remise, release, sell and convey to the Dubuque and Sioux City Railroad Company, the said railroad, its franchises, appurtenances and the other properties aforesaid; also, the said lands granted by Congress, so far as the same remained undisposed of at the time of said foreclosure, to have and to hold the sama upon the same terms and conditions, rights and privileges, as they were heretofore held by the Dubuque and Pacific Railroad Company.
REPOSTEIS.