By the Court,

This was an action in replevin, brought by John H. Martin.for the recovery of damages for the alleged wrongful detention of thirty carloads of hay from McPherson Station, and from a sideling at Gannett, in the state of Nebraska to Cheyenne, and Camp Carling, in the territory of Wyoming, to fill a contract for the United States; under an alleged special contract entered into with and between the parties to this action. Under the terms of the special contract, the defendant undertook to furnish cars to the plaintiff, at rates much less than the schedule rates, as published in the ordinary course of their business. The evidence on the part of the plaintiff below is, that on the tenth of September, 1871, he submitted to the freight agent of the defendant below,' an interrogatory written with a lead pencil in the following words:

“E. P. Yining, G. F. A.: How much per car-load will you charge me for three hundred cars of hay from McPherson and Julesburg to Cheyenne ? Fifty cars of grain from Omaha, Fremont and G. Island to Cheyenne; fifty ears of flour from Omaha to Cheyenne, and one hundred and seventy-five cars of wood from Sherman to Cheyenne. J. H. Martin.”

“After I submitted this proposition to Mr. Yining we had some talk, and he made me this answer:”

“Hay, McPherson to Cheyenne, large cars, $46; small, do., $32; Julesburg to Cheyenne, large cars, $40; small cars, $30; grain and flour, Omaha, Fremont and. G. Island to' Cheyenne, $70, cars, car-loads not to exceed 20,000 pounds;. *146wood, Sherman to Cheyenne, $12.50, carnot exceeding 500 cords, all above 500, $16.50 per car.”

■ “ This answer is in the handwriting of Colonel Brownson, except the modification as to the quantity of wood, which Mr. Yining placed upon it in pencil himself. This hay replevined was shipped on this contract. McKay, agent, refused to deliver the hay because the freight was not paid.”

The evidence further shows, being admitted by defendant below, that a tender was made of the amount of the freight according to the terms of the above contract. It was claimed by the defendant below, that admitting the special contract to have been made, that it expired with the year 1871, under the rules of the company; one of which Avas, that all special contracts ended on the thirty-first of December; that the plaintiff was furnished with a circular issued by the company, giving notice that all special rates Avould cease on and after that day; and that any freight to be shipped would be subjected to the regular tariff of rates of the company; which at that time would amount to seventy-one dollars and five cents per car.

The court beloAv submitted the question of fact to the jury, with the instruction, that if they believed from the evidence that such a contract was entered into between the parties Avithout reference to time, that the law would imply that the freighting should be done in a reasonable time, and that the defendant would be bound by its contract, unless it could show that there was unnecessary delay on the part of the plaintiff; that no matter what were the rules of the railroad company, if it agreed to carry the freight in question at stipulated rates, and the plaintiff proceeded to do the shipping without any unreasonable delay, the company would be bound by its special contract, if entered into by an agent having authority to make such a contract. The jury were further instructed that if they found that such a. contract had been made, and that the plaintiff had performed his part of said contract without delay; that a tender *147of the full amount of freight had been made, in accordance with the contract; that the plaintiff was entitled to the immediate possession of the property, at the time the tender was made, and that the plaintiff had sustained damages by reason of the detention; that then their verdict should be for plaintiff; that he receive the property with such damages as, in their judgment, he had sustained; while on the other hand if they should find that there was not such a special contract, or that if there was a contract, and that the plaintiff had failed to comply with his part of its terms, by not shipping the hay as rapidly as possible; that the neglect or refusal on his part would set aside the special contract, and subject him to the ordinary schedule of freights of the company, and that then they should find for the defendant and in either ease, should assess the damages in such sum as the evidence warranted.

The errors complained of by the appellant are: 1. That the court erred in refusing to permit a custom of other railroads, as to the expiration of all special rates at the end of each year; 2. That the court below refused to permit the agent of the appellant to testify as to the books of the appellant; and, 3. That the court erred in its instructions to the jury.

With regard to the first complaint, we fail to see any error. The record shows that the custom of the defendant below was permitted to go to the jury without objection, and that having been permitted was certainly as much as should have been allowed, and we think with the court *n its instructions to the jury, that if they found that the special contract had been entered into in good faith, the railroad company was as much bound by it as the plaintiff in the action below, and so long as he carried out his part of the contract according to its terms, he had a right to expect 'the defendant below to do the same. It surely would not be held that if the contract had been made within a few days of the close of the year, that either party had a right to rescind it at pleasure, without the con*148sent of the opposite party. And if it could not be rescinded if made a very short time before the close of the year, the difference in time would not give them any more right to do so. This contract was for the transportation* of a definite quantity of hay, without regard to time, and no time being mentioned, the legal presumption would be that the plaintiff below should have a reasonable length of time to have the hay carried over defendant’s road, and unless it was shown that he was guilty of unnecessary delay in doing the work, he was entitled to have the stipulations of the contract carried out in good faith.

With regard to the second error, we do not clearly see how the freight-books could be admitted in evidence; the law for the convenience of suitors permits the account-books of original entries to be given in evidence, and other books, such as freight-books of a railroad company, may be used as memoranda to refresh the recollections of a witness, but they can only be used for that purpose, and not to prove that the entries therein are correct, and thus make out a case unsupported by other corroborating statements.

The third error is too indefinite to be relied upon; very possibly the judge below did err in some of his instructions, but we fail to see in the instructions given, or in those refused anything to mislead the jury to the detriment of the defendant below. Another error complained of (for there are several not referred to) is that the damages are excessive. This may possibly be true, but from the fact that the case submitted to the jury was to be determined more from the facts than from legal propositions, and the jury being competent to pass upon the facts, the courts will not, as a general thing, interfere with verdicts of this character, unless it be shown that there was a misconception of the facts as given, or a palpable intention to commit a great wrong. We therefore do not find anything to justify us, as an appellant court, to interfere with the verdict.

The judgment is affirmed.