#### Chicago & Alton Railroad Company, Appellant, v. Woolner Distilling Company, Appellee.

Gen. No. 6,124.

(Not to be reported in full.)

Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding.

Heard in this court at the April term, 1915.

Reversed and remanded.

Opinion filed November 5, 1915.

*413Statement of the Case.

Action by the Chicago & Alton Railroad Company, plaintiff, against the Woolner Distilling Company, defendant, in the Circuit Court of Peoria county, to recover for demurrage. Prom a judgment for defendant, plaintiff appeals.

This is one of six suits brought by six railroads against the appellee, Woolner Distilling Company, for demurrage. Two of the suits have before reached this court, and are reported as Woolner Distilling Co. v. Peoria & E. Ry. Co., 136 Ill. App. 479, and Chicago, P. & St. L. Ry. Co. v. Woolner Distilling Co., 160 Ill. App. 192. The present case, with four of the others, was referred to a referee by an order of court, to find and report, the facts, and with power to take evidence, which should be reported with conclusions of fact therefrom. The referee reported in accordance with the order, in part based on evidence heard and in part on an agreement of the parties, in which report was included a finding as follows: “I further find from the evidence that the defendant detained cars on which plaintiff is entitled to claim demurrage as set out in ‘Schedule A,’ and made a part hereof, the total number of days’ detention being 2,985 days.

“I further find from the evidence that the total number of cars for the Woolner Distilling Company standing each day in the Kickapoo Tracks waiting unloading from March 30,1904, to March 23,1905, are as set out in ‘ Schedule B ’ hereto attached and made a part of this report, the data for Schedule ‘ B ’ being said ‘Exhibit 39B.’ ”

The court overruled exceptions to the report, and the cause was tried by jury, in which uncontroverted evidence was introduced by the plaintiff that there was a customary and usual charge for holding cars longer than “free time” of one dollar a day excluding holidays and Sundays. Then the plaintiff offered the *414referee’s report with the schedules made a part of it, as showing the amount of time of delay on each of the cars, and the number of days that the cars in question were detained by the defendant. The defendant objected on the ground that the report is a part of the pleadings in the case, and that the findings of the referee are not proof of the acts in the casé. The court sustained the objection, stating as a reason: “It is conceded by both plaintiff and defendant in this case and statements in open court to the jury were made, both on behalf of the plaintiff as well as the defendant, that there would -be no dispute as to the time of shipment of the various cars carrying coal from Springfield and elsewhere to Wesley City or the City of Peoria the time of the arrival of the cars carrying coal either to Wesley City or Kickapoo Yards in the City- of Peoria, or the time the cars were, in fact, delivered to the defendant company at its plant at Peoria.” Then plaintiff introduced in evidence a schedule that was part of the report and suggested that the heading of the page reading “Time for which plaintiff is entitled to charge demurrage” be eliminated, and defendant’s counsel said they would not object and stated that they would agree that Exhibit 39B is a true history of the cars as disclosed by the books of the railroad company, and by the defendant’s books. Then other schedules and parts of the report were offered separately by the plaintiff, and the court sustained objections to their introduction on the ground that it was not a matter for the jury to pass upon. The plaintiff introduced evidence of admissions by the manager of the defendant that there was something due the plaintiff for demurrage charges, and rested. The defendant then offered evidence tending to account for the delay in unloading cars, attributing such delay to the nonaction and misconduct of the plaintiff.

The jury found for defendant and the court overruled a motion by plaintiff for a new trial.

*415Abstract of the Decision.

1. Carriers, § 211*—when evidence insufficient to sustain finding that nothing due for demurrage. In an action to recover for demur-rage by reason of unreasonable delay in unloading freight cars, evidence held, when read as an entirety, not to warrant the conclusion that nothing was due from defendant to plaintiff.

2. New trial, § 52*—when verdict should be set aside as against evidence. In an action where the evidence shows that plaintiff is entitled to recover for some amount, it is error to deny a motion for a new trial after a verdict for defendant.

3. Appeal and error, § 783*—when failure of judge to attach certificate to additional bill of exceptions fatal. The Appellate Court will not consider on review questions presented in an additional bin of exceptions not certified to by the judge of the court appealed from.

Frank T. Miller and John M. Elliott, for appellant ; Stevens, Miller & Elliott and Silas H. Strawn, of counsel.

Weil & Bartley and Quinn & Quinn, for appellee.

Mr. Justice Carnes

delivered the opinion of the court.