73 Mo. 389 | Mo. | 1881
Upon the trial of this cause in the circuit court pi tintiff obtained judgment for the sum of $107,-255.40, from which defendant appealed to the St. Louis court of appeals, where the said judgment was reversed, from which plaintiff has appealed to this court.
The action of plaintiff is for the recovery of damages for alleged breaches of a contract entered into between plaintiff and the Alton & St. Louis Railroad Company on the 28th day of April, 1864, which contract, on the day it was executed, was assigned to the Chicago & Alton Railroad Company, the defendant in this suit. The questions decisive of the case and presented by the record for our determination are : 1. Is the defendant, as assignee of the contract sued upon, liable to an action by plaintiff for any breach of it? 2. Is the contract ultra vires, condemneu by public policy, or in restraint of trade ? 3. Does the contract obligate plaintiff' to transfer passengers and freight brought to its boats loaded in cars, as well as passengers and freight loaded in omnibuses, wagons, drays, etc. ? 4. Was error committed in not receiving as evidence certain way-bills and manifests offered by defendant? 5. Did the court err in overruling defendant’s exceptions to the report of the referee or in refusing to set it aside ? 6. Was the right rule applied in the measurement of damages?
From an averment made in the petition, and not denied by the answer, the fact appears that the contract in question was entered into by the Alton & St. Louis Railroad Company at the special request of the Chicago & Alton Railroad with an agreement then perfected between the said two companies, that it should be assigned to defendant. The fact also appears on the face of the contract that it provides in express terms that the “Alton & St. Louis Railroad Company shall have the right to transfer and assign this agreement to the Chicago & Alton Railroad Company, in which event all the covenants, stipulations and agreements herein above contained, shall be as binding on the Chicago & Alton Railroad Company as the same are now on the Alton & St. Louis Railroad Company.” It further appears that in pursuance of the above stipulation the contract was assigned to defendant on the same day it was executed, which assignment is attached to the contract, and expressly provides that defendant was to take it “subject, nevertheless, _ to the rents and covenants in said agreement contained.” The acceptance by said defendant of said contract under this assignment, which is made in conformity with the terms and on the very condition on which plaintiff assented it might be made, fixes the liability of defendant. This has been expressly decided in the case of Heim v. Vogel, 69 Mo. 529, where it was held that if B, as grantee, accepts a deed from A containing a recital that
Is the contract ultra vires, condemned by public policy or in restraint of trade? The solution of this question in-v°lves a consideration of the powers and relations of the two corporations making the contract, as well as a construction of the contract to ascertain the obligations it imposed on the respective parties. The fact that the Chicago & Alton Railroad Company, by virtue of its charter and various acts of the legislature of the state of Illinois, (which it is unnecessary here to recite,) was invested with rights and charged with the duties of a common carrier in the carriage of persons and property to, from and between its terminal points, viz : Chicago and a point on Bloody Island, on the Illinois shore of the Mississippi river, opposite the city of St. Louis, is not controverted. Without reviewing the various acts of the legislatures of the states of Illinois and Missouri relating to the incorporation of the Wiggins Ferry Company, it will be sufficient to say that they gave it the privilege of operating a ferry over the Mississippi river between the city of St. Louis and the Illinois shore of said river opposite said city, the said company being restricted to
Before the railroad company could exercise the rights conferred or discharge the duties imposed upon it by its charter, it was indispensably necessary for it to acquire, either by condemnation or contract, a right of way for its tracks and grounds for a depot and other purposes incident to its business; and to accomplish these ends it had the power to contract with the owner of the land which it desired to appropriate to such uses. The Wiggins Ferry Company owned the desired lands, and under its charter had the power to dispose of them by contract, and also to contract for the ferrying of persons and property going to or coming from St. Louis over the Mississippi river. The contract in suit, which grew out of these relations existing between the parties to it, declares that the object sought to be aecomplished'by it and prompting its execution, were two, viz: First, To secure permanently to the Wiggins Ferry Company “ the ferrying business between the Illinois and the Missouri shore opposite the city of St. Louis of all the freights and passengers carried or to be carried by the Alton & St. Louis Railroad Company, and the further sum of $2,500 per annum to be paid by the said railroad company.” Second, To secure to the Alton & St. Louis Railroad Company “ proper facilities for depot grounds for the operation and doing of the business of their road at a western terminus on the Mississippi river opposite to the city of St. Louis.” That both plaintiff and defendant had the right to secure to themselves respectively, by contract, these objects, we think is clear; and we cannot, therefore, declare from anything appearing on the face of the contract that it is ultra vires, but must hold it to be valid, unless it is shown, either by the contract itself or by extrinsic evidence, that they so contracted in securing these objects as to impose obligations on themselves which are either
None of these objections apply to the provisions of the contract transferring to defendant rights in lands of the' Wiggins Eerry Company, whereby defendant acquired interests therein which enabled it fully and completely to accomplish the object it had in view in entering into the contract to rent depot grounds on Bloody Island and a right of way from the east end of said depot grounds northwardly toward the town of Brooklyn; nor do they apply to the obligation of plaintiff, whereby it bound the Wiggins Eerry Company “to furnish and maintain good and convenient wharf boats and steam ferry boats to do, with promptness and dispatch, all the ferrying required for the transit of passengers and freight coming from or going to said railroad (or tne assignee hereinafter mentioned) over the river.”
When the fact is considered that defendant, with one terminus of its road at Chicago, and the other at a point on ^ie Illinois shore of the Mississippi river opposite the city of St. Louis, was necessarily dependent, for the successful operation ^.g roa(j an¿ business, on the facilities which it might afford for the passage over said river of persons and property destined either for St. Louis or points beyond —or coming to it from St. Louis destined either to Chicago or to points intermediate and beyond, it was in the interest not only of defendant, but of the public, that it should secure to itself these facilities. That these facilities were secured to defendant by the contract in question cannot be controverted, and that it had the power to make the contract by which it secured them is shown by Hutchinson on Carriers, section 145, and following sections, and by the case of Wheeler v. San Francisco R. R. Co., 31 Cal. 46,
But it is insisted that defendant, in securing them, obligated itself to do what is forbidden by public policy, and what is in restraint of trade, by agreeing i .-i/V ° that it “ will always employ the said ferry to transport across said river all persons and property which may be taken across, the said river either way to or from the Illinois shore, either for the purpose of being transported on said railroad or having been brought to the said river Mississippi, upon said railroad, so that said ferry company * * shall have the profits of the transportation of all such passengers, persons and property taken across said river either way by the said railroad company, and that no other than the Wiggins Ferry shall ever, at any time, be employed by the said party of the second part, or the assignee herein mentioned, to cross any passengers or freights coming or going on said road.” Keeping in view the fact expressed in the contract that one object in making it was to secure to plaintiff “ the ferrying business between the Illinois shore and the Missouri shore opposite St. Louis of all passengers and freight carried, or to be carried,” by defendant, and that the above stipulations were inserted to carry out this object, and construing the contract in its entirety, giving to the words employed therein their usual signification, without twisting them from their natural meaning in the relation they bear to the object referred to, we are of opinion that defendant bound itself to give to plaintiff for ferrying over the Mississippi river all passengers and freight brought by it to the Illinois shore opposite the city of St. Louis to be crossed over to said city, and all passengers and freight taken from St. Louis for carriage by defendant on its road northward.
If the design of the contracting parties had been to limit the obligation of defendant to give to plaintiff for ferrying, and limit the right of plaintiff to have for ferrying
If the contract is to be viewed in the light of the circumstances surrounding the parties at the time of its execution, the construction we have given it is fortified and sustained. It is shown by the evidence that at the time it was entered into there were three ferry companies doing business under their respective charters from the Illinois shore opposite St. Louis, viz : The St. Clair County Eerry, south, and the Madison County Eerry, north of the Wiggins Eerry Company. According to the evidence of Mr. Bisdom, the Wiggins Eerry Company had a frontage on the Illinois shore of said liver opposite St. Louis, of about two and a half miles; this frontage included not only
If, as argued by counsel for plaintiff and conceded by counsel for defendant, the Chicago & Alton Railroad ComParY was authorized by its charter to carry passengers and freight to St. Louis, and empowered to employ and use boats for that purpose, it was its duty to do so, and the public had a right to demand of defendant the performance of this duty in
If on the other hand the southern terminus of defendant’s road was on Bloody Island, it owed no duty to the public to carry freight or passengers beyond such terminus, and in making the contract in question it neither abandoned norviolated any duty to the public, because it owed it none. While defendant could not be compelled to carry beyond the terminus of its line, it nevertheless might contract, if it chose to do it, for the carriage of freight beyond such terminus, and for this purpose make a valid contract with a connecting carrier, and if it elected to make such contract it would be bound by it. Hutchinson on Carriers, §§ 147, 151, and authorities there cited; lb., § 317; Paradine v. Jane, Aleyn Rep., 26, 27.
The only element of restraint of trade to be found in the obligation of defendant, is that it will never employ any other ferry but the Wiggins Ferry to transport freight from the Illinois shore, opposite the city of St. Louis, or
While holding the contract, as we have construed it, to be valid, yet if it is shown by extrinsic evidence to be in conflict with public policy, to that extent it , - . , . . . „ ,. must yield and give way, and it is for the . . , , defendant alarming it to be so, to show it. 0 flhe salutary rule that a contract against public policy or interest will not be enforced, was adopted to conserve the best interests of society and the state, and a party who invokes it as a shield behind which to hide and protect himself against the damages attachable to the breach of a contract, especially when such party is in the full and free enjoyment of all the fruits of the contract, must make it clearly manifest to the mind of the court that the obligations imposed by it are condemned by the rule. In the case of Bryant v. Fairfield, 51 Me. 146, it was held that it is not for a party who retains the consideration of the contract, to invoke the rule that the contract is against the policy of the law. While not willing to go to the extent of that case and say that a party in the enjoyment of all he was to get in consideration of a promise made by him to another, should not be allowed, when sued for a breach of such promise, to plead that it was against public policy, we may safely say, without infring
The fact that since that time alL freight carried by defendant loaded in its cars and transferred without breaking bulk, was transferred, not by the Wiggins, but by the Madison County Eerry, is also conceded, and it is this ear transfer so made of which plaintiff' complains, and which it sets up as a breach of defendant’s contract. But the fact that such transfer constituted a breach of the contract is denied by defendant, who claims, first, that the contract did not embrace car transfer, that such method of transfer was not used by plaintiff at the time it was entered into, and was hot, therefore, contemplated by the parties; second, that if embraced, the public interest demanded car transfer at the Madison County Eerry, which could not be met by the Wiggins Eerry, and that, in this conflict between the obligation of defendant and public interest, the obligation yields and ceases to be enforceable.
While it is true that plaintiff and defendant may be presumed to have contracted with reference to the condition of things existing at the time the contract was made, it is equally true that they must be presumed to have contracted with reference to the fact that if, in the future, other methods than those then in use, for the transfer of passengers and freight from the rail ter
If defendant owed a charter duty only to the public to provide means of transit across the Mississippi, and the evidence in the case showed that the public interest could not have been as well served by car transfer at the Wiggins as at the Madison County Ferry, an excuse might be found for defendant’s failure to make such demand, and a reason offered why its obligation to defendant should not be enforced. We think the evidence fails to show this. It shows that defendant, on the 9th day of
“ And the said party of the second part (the railroad company) hereby further covenants and agrees to and with said first party that it, the said second party, will not at any time hereafter establish, or attempt to establish, for its-own use, or aid or assist in the establishment or maintenance of any other ferry company intending to compete with the party of the first part for the ferrying business to-be done from the lands of the first party in Madison county,, and at said station of Yenice, and that it, the said second party, will not seek to divert traffic which may be offered for said station and ferry to other points on the line of the railroad now operated by it, the said second party, and.
The evidence also shows that in May or June, 1869, car transfer was introduced at the Madison County Ferry at Venice, and that defendant prepared, at its own cost, the said landing stipulated for, and also switch tracks
The evidence also shows that on the 18th day of April, 1870,.the following circular was issued : •
“ Chicago & Alton Railroad Co., April 18th, 1870.
“ Instructions to Agents : Complaint has been made to this company by the Wiggins Ferry Company of St. Louis, that its agents have, contrary to former instructions issued them on this subject, in some cases forwarded freight sent to and from St. Louis, by way of "Venice, in Madison county, without instructions from the shipper or consignee so to do. You are, therefore, specially instructed, in all cases without exception, where goods are delivered to this company for transportation to and from St. Louis, and no direction is given you by the person or persons controlling the same as to the route by which the same shall be sent, to way-bill such goods to or from the city of St. Louis, via East St. Louis. In cases where the person or persons controlling the goods delivered to this company for transportation to and from St. Louis, give orders that such goods shall he sent via any other point than East St. Louis, you are instructed to send the same according to the orders given, and in every case to note the directions of the shipper on the way-bill accompanying the goods and on the bill of lading delivered to the shipper. Agents are positively forbidden to use any attempt to influence shippers or other persons controlling the direction of freight either to or from St. Louis, in favor of any particular route, but in every case to leave such parties entirely free to ship by whatever route they may choose, without any interference
“ T. B. Blackstone, President.
“J. C. McMullin, General Superintendent.”
In the light of these facts, we are satisfied that public interest could not only have been as well but better served by car transfer at the Wiggins than at the Venice ferry, and that the contract of 1866 between the defendant and the Madison County Ferry was in fraud of the rights of plaintiff under the contract of 1864, and made in the interest of defendant and not in the interest of either the public or the shipper. We cannot resist the impression which the above facts have made upon our minds; that they evince a purpose on the part of defendant how not to perform its contract with the Wiggins Ferry Company, so as to evade the obligations it imposed, and at the same time to retain all the benefits it received under it. While we recognize the right of the shipper to direct the route by which his goods shall be carried, and the corresponding duty of the carrier to obey the direction, we do not think the principle can be invoked by defendant in this case to relieve it from responsibility incurred under the contract of 1864, for the reason that the evidence tends strongly, if not conclusively, to show that the defendant, by its action in the premises, had reduced the shipper to the necessity of electing to take either wagon or piece transfer at the Wiggins ferry, or car transfer at the Venice ferry, and thus forced the shipper to accept car transfer at Venice, thereby subjecting his goods to transportation on the water a distance twice as great as that to which they would have been subjected if transferred by the Wiggins ferry.
In this view of the case the question as to whether the way-bill copy-books and manifest copy-books offered in evidence ought or not to have been received, is immaterial. The purpose for which they were offered was to show that the defendant was directed by the shipper to use the Venice
"While the exceptions made to the report of the referee might well have been overruled on the ground that they were not so specific as to inform the court in what particular the report was unsustained by the evidence, nor wherein it was against the law and instructions of the court, nor what incompetent evidence was rejected by the referee,- still if we consider, as contended for by counsel, that the exceptions were sufficiently specific to require the court to look into the evidence on which the report was based, we are of the opinion that the trial court did not err in overruling the exceptions, inasmuch as there was evidence tending to establish every fact found by the referee. It has been held by this court in the cases of Western Boatman’s Benev. Asso. v. Kribben, 48 Mo. 37, and Franz v. Dietrich, 49 Mo. 95, that the report of a referee is equivalent to a special verdict and.will not be disturbed on appeal as being against the weight of evi
The referee in his report gave to plaintiff as damages the profits for ferrying all cars transferred by the Venice ferry containing freight received and billed „ . 0 0 for carriage over defendant s road at places or for destinations beyond the terminus of its road. The referee, in thus acting, adopted the rule laid down by the trial court in giving its judgment, where it is said that “ the conclusion reached, therefore, is, that the proper construction of the agreement required the defendant in all cases where it engaged in contracts for the transportation of persons or property beyond the terminus of its road, and the execution of such contracts required the employment of a ferry between St. Louis and the Illinois shore, to employ the ferry of plaintiff, and in whatever instances the defendant has failed to do this it is liable for all profits lost to it by reason of such failure, and this applies as well to freights in bulk or cars as in parcels or packages.” In view of the fact that defendant obligated plaintiff'always to keep sufficient ferry boats and appliances to do all the ferrying of persons and property required to be done, and the fact that plaintiff had fully complied with its obligation and had incurred all the expense of time, money and labor to carry the required freight, the above rule for the measurement of damages was fully authorized. Pond v. Wyman, 15 Mo. 183; Nearns v. Harbert, 25 Mo. 352.
The instructions given by the court show that the cause was tried upon a view of the case more favorable to defendant than that which we have taken of it, and upon full examination of the record we are unable to perceive that any error was committed against the defendant, and will,
