67 So. 695 | Ala. | 1914
I. L. Graves, general freight agent, acting for and on behalf of the Southern Railway Company, made a contract with the Huntsville Lumber Company to' build, at the expense of the Huntsville Lumber Company, a side track. This side track was to be constructed for the purpose of enabling
“January 14, 1908.
“Mr. W. F. Webster, Nice Pres. Huntsville Lbr. Co., Decatur, Alabama- — -Dear Sir: Industrial: Side Track Huntsville Lumber Co., at Decatur, Ala. Since receipt of your letter of December 21st, I have handled with our operating department the matter of the construction of your side track; and for mutual benefit and protection, it is felt that it will be well to- exchange letters, giving positive assurances of what will be done. To this end I beg to advise our understanding of the matter:
“First-: The Southern Railway Company will com struct track at Decatur Junction, 500 feet from point of switch, with total clearance of 350 feet.
“Second: The Huntsville Lumber Company will immediately, upon completion of this track and rendition of the bill, reimburse the Southern Railway Company for the entire expense thereof: this expense at present being estimated at' $799.95.
“Third: The Southern Railway Company will refund to the Huntsville Lumber Company the value of "the rails, fastenings, switches, and other hardware used in the construction of the track, at present estimated to cost $459.18, on basis of 5 per cent, of the revenue accruing to- the Southern Railway Company for lumber manufactured at the plant of the Huntsville Lumber Company at Decatur, Alabama, from logs shipped from the track in question.
“Fourth: Owing to- the difficulty of positively identifying lumber actually manufactured from these logs,*335 the Southern Railway is agreeable to this refund being made on basis of making a refund of one car of lumber for three cars of logs shipped into the plant; that is to say, when three cars have actually been shipped into the plant, the Huntsville Lumber Company will be entitled to refund on one car of lumber, when six cars have been shipped, to refund on two cars of lumber, when nine cars have been shipped, to refund on three cars of lumber, and in the same manner until the entire value of the rails and fastenings is refunded, provided this refund is entirely accomplished within two years commencing eighteen months after the completion of track.
“As explanation of the above basis for refund: It has been determined that the revenue on the logs into the plant is too low to justify the making of any refund therefrom, and' the alternative is to make a refund on the lumber manufactured from these logs. “I am sending you this letter in duplicate. If it meets with your approval, mil you please sign below on the space indicated a-nd return to me at once; when instructions mil be given to put the track vn.”
“Yours truly,
I. L. Graves,
“General Freight Agent.
“Approved: F. W. Webster, Vice Pres, of
“Huntsville Lumber Co.
It appears from this record that the above was intended by the parties, when it was signed, as a memorandum of the agreement, and that it was contemplated that subsequently a formal instrument was to be prepared setting out the agreement, and that this formal agreement was to be signed by both parties. The formal agreement which the parties had in contemplation has never in fact been signed and delivered by them»
(1)
The trouble with the above argument is that the Southern Railway Company built the side track. Certainly that department of the railway company • which built the side track was the department which was authorized to build side tracks, and the only evidence of an agreement to which the' building of the side track can possibly be referred is the paper which was signed by Graves, and which we have above quoted in this opinion. The building of the side track Avas not blindly done, and its building must be taken as a ratification by the railway company of the agreement Avhich was made by Graves, if it be true that the agreement needed ratification. “The ratification of an act is equivalent to an original authorization of the act.”—Holloway v. Harper, 108 Ala. 647, 18 South. 663.
(2, 3)
On this subject also see Woldert v. Arledge, 4 Tex. Civ. App. 692, 23 S. W. 1053; Rankin v. Mitchem. 141 N. C. 277, 53 S. E. 855; Concannon v. Point Min. & Mill Co., 156 Mo. App. 79, 135 S. W. 991; Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209, 39 N. E. 75, 29 L. R. A. 434, 43 Am. St. Rep. 760.
Affirmed.