| Ill. | Nov 11, 1887
delivered the opinion of the Court:
There are only two grounds upon which the reversal of the judgment is urged in this court, viz., first, that the questions involved in this record were, so far as the appellant is concerned, res judicata at the time of the institution of this suit; second, that this record contains no evidence in support of the alleged non-performance by appellant of the contract in question.
The former adjudication which is insisted upon, is the decree in the chancery suit against the appellant for specific performance. As the Chicago, Burlington and Quincy company alone appealed from that decree, it is contended that the reversal of the decree obtained on that appeal did not affect this appellant, and that, notwithstanding such reversal, the decree still remains in full force against this appellant. The doctrine relied upon is, that a defendant who does not join in an appeal can not have the benefit thereof, even though the result of it may show that the decree was erroneous, as well against him as the appellant, and that an appellate court can not reverse a decree against a party who has not appealed, even though the court below had no jurisdiction to make the decree against him, as laid down in 1 Barb. Ch. Pr. 395, and recognized by this court. in Enos v. Capps, 12 Ill. 255" date_filed="1850-12-15" court="Ill." case_name="Enos v. Capps">12 Ill. 255, and Rees v. City of Chicago, 38 id. 322. But the rule was further declared, in the two latter cases, that a decree jointly binding on several defendants, so that each is liable for the whole, if reversed at all, must be reversed as to all; but where a decree in form is joint, but is several in its effect, it may be reversed as to a part of the defendants.
In the decree for specific performance, the court found that the defendants, the Chicago, Burlington - and Quincy Bailroad Company and the Chicago and Alton Bailroad Company, were and are, in equity, bound together with said Pittsburgh, Fort Wayne and Chicago Bailway Company, by said clause of said agreement providing for said switch connections and their use, as aforesaid. “And the court further finds that the defendants failed and refused to restore said switch connections. * * * And the court therefore finds that the complainants are entitled to a specific performance, by the defendants, of the aforesaid clause or provision of said agreement in reference to said switch connections and their said use.” And it was thereupon decreed that the Fort Wayne company make a switch connection between its tracks and the premises of the «complainants, and that the other defendants suffer and permit said connection to be made, and that the defendants shall allow, when so made, the use of said switch connection to the complainants, etc. It would be impossible for either of the companies, of itself, to restore the switch connection as it -was at the time of the contract, as it would necessarily have to cross the tracks of all the companies. We think the decree was of such a joint character as to bring it within that class ■of joint decrees where a reversal, if any, should be as to all the defendants. It was the entire decree which was reversed by this court, and not merely the decree against the Burlington company. We are of opinion that the chancery suit, and the decree for specific performance entered therein, do not offer .any impediment to the maintenance of this suit.
The second point, that the record contains no evidence in •support of the alleged non-performance of the contract, is based upon the construction which appellant’s counsel would place upon the contract, which is, that the continuance of the switch ■connection was to be only at the will of appellant.
The evidence shows that the appellant, after taking possession of the premises and putting in its two additional tracks, ■did restore the switch connections, and continue to the appellees the use thereof until the Burlington company took theirs up, in 1881, since when such use has not been continued, and, as appellant contends, it was not required to be, by the terms •of the agreement. Such reading of the contract is attained in this way: As to the use of the switch before the date of the 'contract, it is said the evidence shows no more than that it was the custom of the Fort Wayne and Alton companies to make no switching charge for freight coming over either of their roads, consigned to appellees’ coal yard; that there being thus no agreement upon the subject, and therefore no time fixed 'for the termination of the free use of the switch, either party anight terminate it at will. And the language of the contract being, that the use of the switch shall continue hereafter as heretofore,—as the free use of the switch might have been rightfully discontinued at any time before the contract,—a continuance of the free use of the switch afterwards was subject to the same right of discontinuance. This we regard as a strained, and not the natural, construction. The switching privilege was a valuable one, and formed, no doubt, an important part of the consideration for the sale of the land. The agreement for the sale, in which this covenant appears, states it to be “in consideration of the money to be paid and the covenants as hereinafter expressed.” Of very little worth would have been the covenant for the continuance of the free use of the switch if appellant might, at any time, discontinue the use. Evidently, such was not the understanding of the parties. The agreement was to continue to appellees the use of the switch connections, without any limit as to time. The words, “as heretofore,” in the clause, “and continue to them the use of the same hereafter as heretofore,” as we read them, relate to the mode of the use of the switch connections, and have no reference to the time of the use.
The judgment of the Appellate Court must be affirmed.
Judgment affirmed„