157 Mass. 258 | Mass. | 1892
This case was sent to an auditor, and the auditor found for the defendant. It was then tried by the court without a jury, on the auditor’s report, and the court found that the plaintiff was entitled to recover $1'257.73 on account of the first claim made in the declaration, but was not entitled to recover anything upon the second or third claim, and on these findings the case was reported for the determination of this court. At the argument here, the counsel for the plaintiff waived any exception to the finding of the court on the second claim; but he contends that its finding on the third claim is erroneous, and the defendant’s counsel contends that the finding on the first claim is erroneous. The third claim is for terminal charges on freight from October 1, 1878, to October 1, 1880. It appears from the auditor’s report that during the continuance of the traffic contract no terminal charges were claimed by either of said roads from the other; that during this time the parties jointly owned as tenants in common the freight-houses in Boston, the plaintiff owning sixty-nine one-hundredths and the defendant thirty-one one-hundredths thereof; and that the title so continued until November, 1880, when the defendant conveyed its interest in the freight-houses to the plaintiff. It also appeared that “ during the period covered by the present claim, from October 1, 1878, to October 1, 1880, the plaintiff occupied the said freight-houses for its terminal business, and no charge was made by the plaintiff against the defendant for terminals, or by the defendant against the plaintiff for rent of said freight-houses.” The defendant filed a petition before the Board of Railroad Commissioners
The award is clear that the amount awarded to the Boston and Lowell Railroad Corporation is in full compensation for drawing over its road the passengers, cars, and merchandise of the Nashua and Lowell Railroad Corporation, and for providing convenient and suitable depot accommodations therefor. Apparently, the terminal services sued for are incidental to the furnishing of suitable depot accommodations for the merchandise transported. We do not know what the clause relating to terminal freight charges means. The commissioners had taken notice of the fact that a portion of the terminal grounds and buildings used for freight purposes was owned jointly by the two companies, but they say that “ this ownership, so far as it is joint, does not affect the present award, being a matter to be settled elsewhere by division or payments for use and occupation. The case stands, therefore, simply as if the Nashua and Lowell sought to reach the terminal accommodations of the Boston and Lowell in order to make use of them.” The clause may mean that terminal freight charges as such, and as distinguished from the general service of providing suitable depot accommodations, were not considered or included, or that, as the freight-houses
The claim on the first count on the facts found by the auditor in substance is this. While the traffic contract was in force, the agent of the two roads employed one Paige, as we understand, for the two corporations. Paige becoming dissatisfied with the amount of his salary, an arrangement was made whereby he was furnished with the use of a dwelling-house in addition to the pay he was receiving. This was done by the agent in the following manner. Paige bought a dwelling-house with money furnished by the plaintiff, and gave the plaintiff a mortgage. Afterward the house was conveyed by Paige to the plaintiff, and his note and mortgage were surrendered. Paige paid no interest on the mortgage, and no rent. Paige and his successor in the