131 Mo. 291 | Mo. | 1895
This is an appeal from a judgment of the circuit court of Buchanan county in favor of the St. Joseph Union Depot Company, plaintiff, against the Chicago, Rock Island & Pacific Railway Company, defendant, for the sum of $7,767.76.
On the tenth day of April, 1888, the plaintiff, party of the first part, and the Chicago, Kansas and Nebraska Railway Company, party of the second part, entered into the following contract in writing:
“Whereas, The party of the first part has become incorporated and organized under the laws of the state of Missouri for the purpose of erecting, maintaining, and operating a union passenger depot in said city, and has erected upon a site chosen by said party of the first part a union depot; and
“Whereas, The said party of the second part desires to rent and occupy the same; and
“Whereas, For the protection of the parties hereto, it is important that the rights, duties, and liabilities of each in regard to the whole subject-matter of said depot, its appurtenances, use, care, control, rental, taxes, expenses, renewals, and repairs shall be stated and defined:
“Now, Therefore, In consideration of the premises, it is mutually agreed by and between the parties hereto as follows:
“First. Said party of the second part hereby agrees to pay to the said party of the first part, for the' use of said depot, an annual rental amounting to its proportion of fifteeen thousand dollars; said sum being interest at ten per centum per annum upon the original bonded indebtedness of said party of the first part, amounting to one hundred and fifty thousand ($150,-*297 000) dollars; said proportion being found by dividing said sum of fifteen thousand ($15,000) equally to and between all the railroad companies using said union depot from time to time during the life of this contract; and in addition thereto, its proportion of the expenses of maintaining and operating said union depot, and of all repairs thereto, and all taxes thereon, said proportion being ascertained in like manner as proportion of rental as above set forth:
“Provided, That all rentals for the use of said depot and appurtenances derived from railroad companies not parties to contract with said first party, similar hereto, and all rentals and receipts for use of said depot and appurtenances from any source whatever, shall be applied as a credit upon and in reduction of the amount so as aforesaid to be paid as a rental by the several railroad companies using said union depot under contract with the said first party.
“Second. The amount of rental to be paid by any other railroad company not party to a contract with said first party, for use of said depot or appurtenances, shall be fixed by the board of directors of the party of the first part.
“Third. The said party of the second part shall be assessed by the said party of the first part monthly, for its proportion of said rental and of said expenses in maintaining and operating said depot, and shall pay the same no later than the twenty-fifth day of the month succeeding that for which such- assessment is made; such payments shall be made by drafts drawn by the treasurer of the said party of the first part, and any failure on the part of said party of the second part to pay its assessment as aforesaid, at the option of the said party of the first part, shall be deemed a forfeiture of the right of said second party to the use of said depot.
*298 “Fourth. The management of the depot, so far as relates to passenger service therein, and upon the grounds belonging thereto, shall be in charge of such officers and employees as shall from time to time be thought necessary and expedient by said party of the first part, and who shall be appointed and employed by said party of the first part for such purposes.
“Fifth. The union depot shall be used by said second party for all its passenger trains destined for, or departing from, St. Joseph.
“Sixth. The said-party of the first part shall at all times keep and maintain said depot, its grounds, yards, tracks, switches, and all appurtenances in good order and repair; and shall protect its depot buildings and improvements by adequate insurance against loss by fire; and the cost of such insurance shall be considered a part of the current expense of maintaining and operating said depot.
“Seventh. Payments, as herein provided, shall commence from the date when said second party commenced to use said union depot.
“Eighth. It is further agreed that the several covenants, conditions, and stipulations herein contained shall be mutually binding upon the respective parties hereto, their successors and assigns, for the term of fifty (50) years from and after the time when said depot was completed and ready for use and occupation, as aforesaid, unless this agreement shall be sooner determined by reason of any of the provisions hereinbefore or hereinafter contained.
“Ninth. * * * * *a
' On the same day the plaintiff and the St. Joseph & Iowa Railroad Company entered into a like separate and independent contract upon precisely the same terms.
Prior to the making of these contracts, to wit, on
After the making of said contracts between the plaintiff and the Chicago, Kansas & Nebraska Railway Company and the St. Joseph & Iowa Railroad Company, to wit, on the twenty-ninth of December, 1888, the St. Joseph & Iowa Company sold and conveyed by warranty deed its railway, together with all its rights, privileges and franchises, including its said lease of the railway of the Chicago, Kansas & Nebraska Company, to the defendant, and afterward, to wit, on the thirtieth day of April, 1891, the defendant by deed of that date, executed in pursuance of a sale made under a decree of foreclosure of said deed of trust to the Metropolitan Trust Company, acquired all the property, real, personal and mixed, of the Chicago, Kansas & Nebraska Company, together with all its rights, privileges and franchises.
In 1885, the defendant owned and operated a line of railroad extending from Chicago through Altamont, Missouri, to points on the Missouri river, opposite to the cities of Leavenworth and Atchison, Kansas. Altamont was about fifty miles east from St. Joseph. In that year the St. Joseph & Iowa Railroad Company began the construction of a line of railroad from Altamont to Rushville in Buchanan County, Missouri, through St. Joseph; entered into a contract with the defendant company on the first day of July, 1885, establishing a traffic arrangement, whereby the railway of the St. Joseph & Iowa Company became a part of the defendant’s system of railways for through traffic; and completed the construction of the same in the winter of that year. In the beginning of 1886, the Chicago, Kansas & Nebraska Railway- Company began the construction of a railroad in Kansas, terminating on the west bank of the Missouri river opposite St. Joseph and during that arid the Succeeding year constructed and otherwise acquired considerable lines of railroad in Kansas and Nebraska, and on the nineteenth of August, 1886, secured from the St. Joseph & Grand Island Company a lease giving it the right to enter St. Joseph over the-bridge of that company and thereafter the Kansas company by means of the tracks belonging to the bridge connected with the tracks of the St. Joseph & Iowa Company in St. Joseph, running over several hundred feet of the tracks of that company in reaching a connection with the union depot.
During all this time the Iowa company and the
In view of the circumstances under which the independent, cotemporaneous contracts between the depot company and the Iowa company, and the depot company and the Kansas company, were made, and the relations existing between all the parties at the time, it would be absurd to claim that it was the intention of the parties that the Iowa company, which was then the lessee of the Kansas company, and in the interest of which both contracts were evidently made, was to have the usé of the depot thereafter for the trains of the Kansas company, as well as for its own, for one rental. The making of the two contracts, cotemporaneously, providing for the payment of two rentals; and the payment of two rentals continuously thereafter, one for the trains of the Iowa road, and the other for the trains. of the Kansas road, are entirely inconsistent with such an idea. To give the contract of the Iowa company with the depot company such a construction because by the fifth clause thereof it was required to use the union depot “for all its passenger trains destined for or departing from St. Joseph” would be to nullify, or at least ignore, the contract with the Kansas com
It must be remembered that the trains which ran over the line of the Kansas company’s road first made use of the depot facilities after the St. Joseph & Iowa company had taken possession of the Kansas road and was operating the same under its lease. The St. Joseph & Iowa company' operated those trains. The Iowa company knew that the Kansas company was one of the stockholders in the depot company, and a lessee of the depot facilities. The application for membership in the depot company and lease of the depot facilities was made by the Iowa company and the Kansas company on the same day; their applications were accepted the same day; they were admitted on precisely the same terms; their contracts were dated and executed on the same day; and directors representing the respective companies sat in the board of the depot company at every subsequent meeting.
It knew at the time that it and the Kansas company made application to become shareholders in the depot company and lessees of this depot property, that it was the lessee of the- Kansas company’s line, and that the Kansas company would never use the facilities of the depot company. These two contracts must be read together in the light of the circumstances under which they were made, and of the peculiar relations •existing between the parties at the time; and when so read, it can not be doubted but that it was the understanding of all the parties thereto, and interested therein, that the terms of the contract between the Iowa company and the depot company did not include, and were not intended to include, the right by that company to use the plaintiff’s union depot for the trains of the Kansas company for the single rental
The subsequent action of the parties, including that of the defendant, after it had become the absolute owner of all the property of the Iowa company and of its lease of that of the Kansas company, demonstrates that such was the understanding of all the parties, for the rental provided for in the contract with the Kansas company, as well as that provided for .in the contract with the Iowa company, continued to be paid either directly or indirectly by the defendant after it had acquired the absolute control of both roads, the same as before, up to the first of August, 1891, when for the first time it seems the defendant began to claim that it was entitled to the use of the union depot for its Kansas trains without paying therefor, under the contract of the Iowa company.
It would seem that the long previous action of the defendant and all the other parties to this contract ought to be a very significant answer to this claim, for, as was well said in Whitehead v. Bank, 2 W. & S. 175: “The business of a court and jury is to ascertain the meaning and intention of the .parties in making an agreement, and to carry that into effect, if it is consistent with law. I know of no better mode of ascertaining this meaning than is shown if all parties acted on a particular meaning.” A doctrine that has frequently received the approval of this court. Patterson v. Camden, 25 Mo. 22; St. Louis Gaslight Co. v. St. Louis, 46 Mo. 129; Jones v. DeLassus, 84 Mo. 545; Scott v. Scott, 95 Mo. 318.
But it is said that this right is given to the defendant by the terms of the Iowa company’s contract under the ruling of this court upon a similar contract in Union
We think this case, when duly considered, instead of being an authority for the defendant’s position, sustains the conclusion we have reached, that the plaintiff’s contract with the Iowa company, a member of the union depot company, was not intended to, and did not, confer upon that company the right to use plaintiff’s union depot for the trains of the Kansas company, also a member of the union depot company, with whom it made a like independent contract with the knowledge ■of the Iowa company, on the same day. It goes without saying that if the Iowa company did not have that right the defendant has not.
Of course, defendant’s obligations, if any, under that contract, would be those of the Iowa company, to ascertain which it is necessary to recur to the lease made by the Kansas company to the Iowa company on the fifteenth of May, 1886. When this lease was made,
This process of constructing, completing, and turning over by the Kansas company of its railway system to the Iowa company was going on when these two companies were admitted as members of the union depot company, were permitted to become stockholders thereof, commenced the use of its facilities for the trains of both roads, and entered into the contracts aforesaid. It can not, under the circumstances, be doubted but that the Kansas company’s contract was made to carry out the purposes of its lease to the Iowa company, and that by the terms of that lease the right to use those facilities under said contract by payment of the rental therein provided for passed to the Iowa company, and its successor, the defendant company, was accepted by them, together with the corresponding obligation to pay such rental, by the continuous exercise of the right, and payment of the rent for years thereafter, — and that the defendant succeeding to the rights of the Iowa company by its purchase,'must pay the price nominated in the contract as the condition for the exercise of those rights in plaintiff’s property, so long as it enjoys them as vendee of the Iowa company. And this brings us to the next question in the case.
It is expressly provided by our practice act that new facts which have occurred since the institution of the suit may be brought into the issue by answer or replication. R. S. 1889, sec. 2063. “The new matter here pleaded simply enlarged the extent of the relief, by stating a continuation of the same wrong, and was proper supplemental matter.” Ward v. Davidson, 89 Mo. loc. cit. 455. We do not think the court committed error by including in the judgment the rental up to the first of November, 1892. But even if this were error, no objection was made in the trial court to the judgment on this account, either in the motion for a new trial or 'in arrest, and the defendant can not now be heard to assign it here for reversal of the judgment. The judgment of the circuit court is affirmed.