116 Ky. 258 | Ky. Ct. App. | 1903
Opinion of the court by
Affirming.
On June 5, 1872, a contract was made between the Louisville Bridge Company, the Louisville & Nashville Railroad Company, the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, and certain other railroad companies,, by which the railroad companies agreed to send their traffic over the bridge, and hound themselves to pay the bridge company such rates therefor as would pay certain fixed charges, create a sinking fund to meet an outstanding debt, and pay the stockholders a given annual dividend. This contract is set out in the opinion of this court in the case of Pittsburg, C., C. & St. L. Railway Co. v. Dodd., 115 Ky., 176, 25 R., 255, 72 S. W., 822. By the terms of the contract, the railroad companies using the bridge were placed on terms of absolute equalitythat is, each was to pay at the same rate for traffic it did over the bridge. For convenience, the Louisville & Nashville Railroad Company did not pay its tolls directly to the bridge company, but paid them to the connecting lines north of the river, and they settled with the bridge company. After the rates had been fixed,
As to the plea in bar, it is earnestly maintained by the appellants that the whole claim for all the years from 1881 to 1895 was based on the' same contract, and, being an entirety, the plaintiff could not split its cause of action and sue for part of it in one suit and for the remainder in another. Numerous authorities are cited by counsel in support of the proposition that, where an entire cause of action is split, a judgment in one case will bar a second action for the rest of the claim. The principle is sound, and has been applied very often by the courts. But it has no application where the defendant consents to the splitting of the cause of action. A party, to an action is never allowed to take advantage of that which he consented to, ánd his consent may be shown expressly, or it may be implied from the circumstances, as in other cases. Both the actions referred to were brought in the same court, and near the same time. The defendants appeared in both actions, and, without making any objection to the cause of action being split, or the bringing of two suits, filed a general demurrer to the petitions. These demurrers were heard by the court together, but one opinion being delivered, the court treating the two actions as one. The demurrer was sustained, amended pleadings were filed, the general demurrer was filed again,
The objection as to the admissibility of the evidence arises in this way: The bridge company kept no record of Jthe •business done by the Louisville & Nashville Railroad Company, as it paid its tolls to the connecting lines, and they settled with the bridge company.' When it became necessary to ascertain how much the tolls of the Louisville & Nashville Railroad Company amounted to, a very difficult question was presented, as no record of the payments of the money had been kept. Previous to the year 1888, the Louisville & Nashville Railroad Company had no records at all on the subject; but after the year 1888 it kept the waybills on the freight, or, where the waybill followed the goods, the transfer slip, from which the waybill was made out, was preserved. From these original papers kept by the railroad company, with much labor, it made out a detailed statement of the tolls paid by it subsequent to the year
The defendants complain that interest was allowed on the amount found due the plaintiff. In the former case above referred to, of Louisville Bridge Company v. Louisville & Nashville Railroad Company, 106 Ky., 674, 21 R., 271, 51 S. W., 185, it was held not only that the defendant was liable, but that it was liable for interest from the date of the illegal exactions — at least, from the time it hád information of the amount 'due the plaintiff. The chancellor seems to have followed this ruling. As to the cross-appeal of the appellee for the years previous to 1888, there being no record of the amount of tolls paid, we concur with the chancellor in refusing to give relief. The. court will not guess at the amount of a judgment. The plaintiff must make out his case. If he can not do it, it is his misfortune that he has no evidence. It is true, we might infer from the facts shown by the record that appellee is entitled to something for these years, yet, after all, it would be a bald guess to fix any amount.' But while we are unwilling to disturb the judgment on the cross-appeal, we have no doubt from the record that at least as much was due the appellee, as the chancellor entered judgment in its favor for, and that, on the whole case, appellants have no substantial ground of complaint.
Judgment affirmed.
Petition for rehearing by appellant overruled.