5 Mo. App. 347 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This is an action to recover damages for breaches of a written contract, of date April 28, 1864, between the respondent and the appellant’s assignor. Both parties to the suit are corporations incorporated by acts of the General Assembly of the State of Illinois, the respondent operating a ferry across the Mississippi River from Bloody Island, a part of the Illinois shore opposite St. Louis, to that city. The respondent was incorporated in 1853, but its franchise, which is perpetual, dates from 1819. The location is fixed by law within certain limits. The Alton and St, Louis Railroad Company, the appellant’s assignor, was incorporated by the Legislature of Illinois to construct and
The contract sued on, which was made by the Alton and St. Louis Eaiiroad Company with a view to its being assigned to the appellant, and which was so assigned on the day of its execution, recites that the respondent is anxious to secure to itself "the ferrying business between the Illinois and Missouri shore, opposite to the city of St. Louis, of all the freights and passengers carried or to be carried ’ ’ by the appellant’s assignor, and also the sum of $2,500 per annum; and that, on its part, the appellant’s assignor wishes to secure proper facilities for the operation and doing of the business of its road at its western terminus on the Mississippi Eiver opposite to the city of St. Louis. The agreement declares that it was made for the purpose of securing these objects to the respective parties. It then conveys to the railroad company, forever, a tract of land on Bloody Island four hundred feet in width and fifteen hundred feet in depth, bounded on the west by a line two hundred and sixty feet from low-water mark of the Mississippi Eiver ; also the right of way through the respondent’s lands ; the grant to be for so long as the premises should be used for railroad purposes. Provisions are made for the construction, by the railroad company, of depots, warehouses, tracks, etc., and for such other buildings as may be necessary or conve
The complaint made upon the part of the respondent, the plaintiff below, is that, while it procured good and convenient boats, and has, according to its contract, been ready to do, with promptness and despatch, all the ferrying required for transportation across the Mississippi River of all passengers and freight coming from and going to appellant’s railroad, the appellant refused to give to the respondent such ferriage as the contract called for, and gave it to other persons, and that in this way respondent has lost profits of transportation over the river to the amount of $200,000. The substantial controversy is in regard to the transfer by another ferry company, called the Madison County Ferry Company, across the river, of certain cars of merchandise, in bulk, sent in a car-transfer ferry-boat, the ferriage of which across the Mississippi, as the respondent claims, belonged to the respondent, under the contract of April, 1864. The Madison County Ferry Company, which, for brevity, will be called the Venice ferry, as this company operated a ferry from Venice, in Madison County, Illinois, across the river to St. Louis, was also incorporated by act of the Legislature of Illinois, it having begun to do business about the year 1840. The charter authorized the Madison County Ferry Company to establish a ferry at a certain point in Madison County, the county next north of St. Clair County, in which lay East St. Louis and Bloody Island, where the ferry of the respondent was. The ferry privilege of the Venice ferry was from the point in Madison County to the opposite shore, or the city of St. Louis, and the act of Feb. 11, 1853, which incorporated the respondent, provided that its act of incorporation should not be construed
While the respondent continued to do the ferrying for the appellant at the terminus of the latter’s railway, business arose at the point called Venice. It appears that in 1866, or shortly before that year, a cattle trade, or business of transportation of cattle, grew up in the vicinity of Venice, and that owners of cattle offered for shipment at Venice, upon the appellant’s railroad, cattle in considerable numbers ; that these owners, or some of them, were accustomed to bring their cattle to Venice from the West, and cross the river by the Venice ferry, and at that point to make their shipments by rail to the East by the appellant’s road. In 1866, owing to increasing business, there was a demand for a station upon the appellant’s road at Venice. It appears that in order to get lands for a station and the necessary buildings, and also, it would appear, for a stock-yard, that the cattle trade might be accommodated, the appellant made, on March 9, 1866, a contract with the Madison County Ferry Company. By this contract, the making of which is. complained of by the respondent as a violation on the appellant’s part of its obligations to the respondent, the Venice Ferry Company conveyed to the appellant a right of way for its i’oad, to be used in connection with its main track,, and also a strip of land one hundred and fifty feet in width, lying near Main Street, in the town of Venice, on condition that the land should be used for the purpose of a freight and passenger station, grain-elevator, and for other purposes
In 1869, an important change took place in reference to transportation of grain and other freights across the Mississippi River. All freights had hitherto been sent across the river at St. Louis upon wagons, which were driven upon the ferry-boats. Car freights, or cars filled with goods or merchandise, were, before 1869, sent across the river without breaking bulk, at Quincy, Burlington, and other points, either by car-transfer, ferry-boats, or bridges; and this method being much more rapid, safe, and inexpensive, through freights were seeking other routes than that by way of St. Louis. The public demand, especially among merchants in the vicinity of St. Louis, for a car-transfer there, was very strong. The evidence shows that by the method pursued at respondent’s ferry, of breaking bulk at the river, transferring by wagons, and by the consequent necessity of again unloading and reloading at St. Louis, in case of through freights, damage was done to goods, great delays and extra expenses were entailed, as.compared with the method of car-transfer by which cars from the track of a railroad on one side of the river were, by a boat adapted to that purpose, transferred directly to the track of a railroad on the other side of the river. Thus a demand sprung up for a car-transfer near St. Louis, and certain persons purchased the ferry rights of the Venice Ferry Company, procured a car-transfer boat, and there established, in the spring of 1869, a car-transfer ferry, connecting the roads at Venice with the railroads, or some of them, upon the St. Louis side of the river. When this was thus established, the appellant, by means of the track which extended from the
After the establishment of the car-transfer at Venice, this route was much preferred by shippers. In comparison, the route by East St. Louis was subject to great delays and extra expenses. Freights for the respondent’s ferry would sometimes be delayed for several days in getting over the river, so that they accumulated, and it became necessary to notify shippers that their consignments could not go forward at once. The result was, that consignees at St. Louis, to a considerable extent, directed their shippers to send by way of Venice. It does not appear that this change was owing to unfair conduct or favoritism on the part of the officers of the appellant’s road, but because the old method of transfer was inadequate to the new demands of trade, stimulated as they had been by the improved facilities. It seems clear that the introduction of the car-transfer system very considerably increased the volume of freights passing over the river at St. Louis. The appellant, indeed, availed itself of the advantage of its position at Venice, and of its car-track which led to the river; and other railroad companies using this track paid a compensation for its use, to the appellant. It also appears that certain shippers and consignees doing business in the northern part of the city, where the Venice ferry connected with a railroad at St.
The court below heard evidence upon the main issue; gave and refused instructions, which need not be set out; and, having found that the defendant was liable, and had made out no defence, referred the case to a referee to take testimony, to state an account, and to assess damages. The appellant filed its motion for a new trial, which was overruled; and the referee, after taking voluminous testimony, made a report, the conclusion of which was that the appellant was liable for profits on ferriage of 21,065 cars transferred by the Madison County Ferry Company from Venice to -St. Louis, and 2,810 cars transferred from St. Louis to Venice. The damages, including $5,000 rent, the referee assessed at $103,879.34. Exceptions to the report were filed and overruled. The case is here by appeal.
As serious disputes have arisen in regard to the construction of this contract, it is certainly proper to look at it in the light of the facts surrounding it when it was made. This is the more important as the contract, on its face, in some material particulars, is indefinite, not to say ambiguous. It becomes positively ambiguous when the respondent introduces its evidence, and claims as a breach the transportation across the river, by the Venice ferry, of the loaded cars. No such freights ai'e expressly named in the contract, and there is in it no allusion to any such method of transportation as that by which these were carried.' There is in the contract no indication that, at the time the contract was made, such freights, or methods of transportation, were contemplated by the parties to it, or by the appellant; and the surrounding facts as developed by the respondent’s evidence show that such freights, so to be transported, could not have been within the contemplation of the parties. It is the respondent who must, in the first instance, resort to construction in order to maintain its theory.
But if we take the contract as it is on its face, we see that there is, as applied to the matter nowin dispute, a want of certainty, a lack of precision in its terms. The clauses contamino- the material covenants are as follows : —
*361 “ In consideration of the said covenants, the said party of the first part further agrees to furnish and maintain a good and convenient wharf-boat and steam ferry-boats, to do with promptness and despatch all the ferrying required for the transit of passengers and freight coming from or going to said railroad (or the assignee hereinafter mentioned), over the river, navigation permitting, except that the said ferry company may abandon the business at any time, by giving the railroad company six months’ notice of their determination to do so ; in which event, the right of the said party of the second part herein to the possession of the parcel of ground above specified shall remain unaffected, except as to the payment of the said twenty-five hundred dollars, which is to be paid in any event.
“ The rates of ferriage to be charged on such freight and passengers shall be reasonable; and if at and time the railroad company shall be dissatisfied with the rates charged, and the ferry company shall not be willing to reduce the same, the questiou at issue shall be submitted to the decision of arbitrators, to be appointed in the manner hereinafter provided.
“ In consideration of the lease aforesaid, and the covenant entered into on the part of the said ferry company, the said railroad company covenants and agrees that they will always employ the said ferry company to transport across the 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 the said ferry company, its legal representatives or assigns, owners of the said ferry, 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 Company shall ever at any time be employed by the said party of the second part, or the assignee herein mentioned,*362 -to cross any passengers or freight coming or going on said road.
‘ ‘ And the said party of the second part, in consideration of the leases aforesaid, further covenants and agrees to pay it, the said party of the first part, or its assigns, the annual •sum of twenty-five hundred dollars, to be made in quarterly payments, and to continue as long as the said party of the second part shall, under the lease herein given, continue to enjoy and possess the piece or parcel of land above described.”
The question arises, What passengers and what freights .are here provided for? If we resort to the covenant first .given, we find the answer is contained in the predicate of the proposition, or in the words “ coming from or going to said xailroad * * * over the river.” It is these words which are used to describe the freights and to affix a character to them. The expression “ freights coming and going” seems especially to have dwelt in the minds of the parties, •or in the mind of the draughtsman, whose words they .accepted. The railroad company covenants that no other than the respondent shall ever, at anytime, be employed by the railroad company “to cross any passengers or freight •coming or going on said road;” while further on, in the •covenant in regard to keeping open a space for a wharf and :street, the expression “ coming or going as freight on its road” is employed. In construing a writing, it cannot be •denied that there is a significance arising from the frequency with which words are used, when they are used in one .and the same signification. Where the question is one of description, and where the mind of the writer, as it recurs to the subject, recurs also to the description, the inference as to intention is strong. In view of this, and of the rule that words and phrases are to have that peculiar sense which the language attaches to them, it would seem that by these •expressions were intended such freights as should come and .go, in the regular course of business, unimpeded by any
Against the impression thus derived from these covenants there is nothing to militate in that which provides that the railroad company will always employ the respondent to transport “ all persons and property which may be taken across 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,” etc. The persons and property here described are those of whom the above qualities have been predicated, and it is of course assumed that such “ may be taken across the river.” There is nothing here indicating other persons or property than such as the course of trade would bring to be taken across the river.
The clause last quoted, however, though itself indefinite, is less so than the others in regard to another material term of the contract, — that is, the particular point or locality to which the contract relates. In none of the covenants is the city of St. Louis named ; while in all, except that last quoted, the locality is left undescribed. At what point these freights are to be “ coming from or going to said railroad” these other covenants do not say; but that last quoted uses the words, “ all persons and property which may be taken across the said river either way, to or from the Illinois shore.” Even here there is no limit to the city of St. Louis; and these words, as well as the words which occur in the recital where the city of St. Louis is named, must be considered with reference to the rest of the contract, and to the facts surrounding its execution. Contrasting this use of general terms with the language made use of in the contract between the appellant and the Madison County Ferry Com
It is, then, an assumption that the contract provides for theferriage of passengers and freight going to any part of the city of St. Louis from any point on the appellant’s railway opposite to that city. Without the insertion' of more definite terms into the contract, it does not, when the covenants are-taken together, bear that meaning; and if such an implication could ai’ise from the words, the surrounding facts would show the construction to be erroneous. Apart from any question as to public policy or restraint of trade, the effort to impress this meaning upon the contract is an effort to-give it a scope and reach which, in the light of the circumstances surrounding its execution, it cannot be made to possess.
As principles are best illustrated by marked examples, let it be supposed that the city of St. Louis had a riverfront of twelve or fifteen miles on the Missouri bank, extending from north to south; that respondent’s railway, running along the opposite shore, terminated at a point in
There is no propriety in giving the construction contended for, as the contract has its fair scope and operation. The assumption is gratuitous that the contract means this or nothing. In a commercial country, especially in one rapidly advancing in an industrial point of view, it may well be presumed that two incorporated companies engaged as common carriers in the business of transportation, when they make a contract without limit as to time, have in view those causes which, by analogy and from their uniform action, are called the laws of trade. Where the subject-matter of the contract is commercial traffic, it must be presumed that the parties bore in mind what all commercial experience teaches, — that commerce is constantly seeking, and, in the absence of vexatious restrictions, finding, new and more advantageous channels, by a law of being which is as natural to it as is to water that physical law by which it seeks and finds its level. Selfish interest, constantly at work, creates this uniform action; and shipper and consignee, as these-carriers well knew when they contracted as to a subject involving the interests of shipper and consignee, will
If, indeed, the contract had no operation outside of the-construction contended for by the respondent, it might be-different. The contract of March 9, 1866, is, as has been seen, carefully limited ; yet it appears that with all its limitations it has a substantial scope. But the contract of' April, 1864, has a much wider scope, and contains still more substantial considerations for the benefits which its-execution secured to the appellant. Here was the terminus of a leading railway line connecting two great cities, and at East St. Louis, near the respondent’s ferry, were to be passenger and freight depots upon the land conveyed by the contract. Whatever changes the course of trade might make, there would necessarily be a great volume of traffic brought by the appellant’s railway to the respondent. The-evidence shows that such was the fact. There is no question as to a contract without scope or operation, but as to-what freights come fairly within its purview. As it would be-unreasonable to suppose that two commercial corporations, contracting upon a commercial subject-matter depending’ on the interest of third persons, contracted wholly without-reference to the conduct of those persons, and without reference to well-known usages of commerce ; as in this contract no specific freights are named, but only a general class of freights ; and as this class-description, by its terms, points to that business which shall freely come and go, — these facts, especially when taken in connection with the perpetual
in the contract of 1864, the charters of the contracting parties are referred to, and these, as well as the charter of" the appellant, must be considered as having been in view of' the parties. One of the powers and franchises committed by the Legislature of Illinois to the appellant was to transport persons and property to and from St. Louis, Missouri. This necessarily carried with it the power to convey passengers and freight from Venice, Illinois, to St. Louis, Missouri, and from St. Louis to Venice, in case the interests-of the public and of shippers demanded such transfer. It negatived any inference that the interests of the public and of shippers could be sacrificed by a refusal on the part of the appellant to use its franchise for the purpose of transporting passengers and freights to or from St. Louis by way of Venice, when the public interest demanded such transfer. But the respondent knew that it had no powjer to transfer passengers or freights from Venice to St. Louis, or from St. Louis to Venice, by its ferry. When it made its contract, it contracted in view of these facts, and was bound to know that, in case the public interests demanded, passengers and freights - would have to be transported by way of the Venice ferry to and from St. Louis. The respondent could not contract to convey freights to or from Venice, in violation of its charter ;. and the appellant could not bind itself not to exercise powers committed to it by the State of Illinois for public purposes.. The parties could not contract with a view to the violation. of law, and certainly the presumption is that they did not so contract; and accordingly, for this, as well as for the ■ reasons given, the words “ to and from the Illinois shore,” in the agreement, must be limited to a reasonable meaning..
The question is not now as to what individuals might do,. or how far they can bargain away their rights, but as to corporations which are common carriers, and hold franchises-
The present case extends not merely to the use of certain improvements in transportation, but to the use of franchises granted by a State to incorporated common carriers. By its charter, the appellant has the right to use “ such boat or boats as may be necessary” to carry passengers and freights from Alton and other points on its road to St. Louis, etc. This act must be considered in reference to that granting to the Venice Ferry Company its exclusive privileges. That there was a public demand for the use of the Venice ferry in connection with the appellant’s road, for car-freights, is beyond dispute. We may suppose that the assumed legal effect was expressed, in plain words, in the contract; the question would then be squarely presented whether the law would sanction an agreement by which one public carrier deprives itself of the power to exercise one of its franchises, and of the power to employ another common carrier having an exclusive franchise, when the exercise of both franchises is demanded by the public convenience. In The State v. Hartford and New Haven Railroad Company, 29 Conn. 538, the defendant, under contract with another railway company,
A still further objection is, that the contract, if interpreted as contended for by the respondent, would be in restraint
To a great extent the property was necessarily not in existence when the contract was made, but upon the present hypothesis it included all freights which, in the future, were to pass for transfer across the Mississippi River from or to a, leading line of railway, one of the highways of the country, having for its termini two of the largest of its cities. In so-far as this contract provided that, though there were facilities for bulk transfer at hand, freights, though shipped to be transferred in bulk, should not be so transferred, but should be carried across the river by respondent’s ferry in wagons, so far it was in restraint of trade, and void. In so far as a common carrier incorporated by a State for public purposes, and intrusted with franchises to be used for the public benefit, is prevented from using its franchises so as to accomplish the purposes of the grant, — nay, more, is made to use them to the positive detriment of shippers, so that they are forced either not to trade at all, or, by sending their goods by less advantageous routes, to trade under difficulties and impediments, — so far there is both a violation of public policy and a restraint of trade.
The direct loss, not to a particular person or locality, but to the community and the country, is here apparent. The
The tendeucy is rather to limit than to extend the sphere of contracts which restrain trade. The wholesome rule is, that the burden is on him who claims under such a contract, to show that it is not of real, as it is of apparent, mischief to the public. The odious nature of monopoly, early recognized by the English law, has become more apparent as commerce has increased. The law fully recognizes the necessity of competition, and here again not only takes notice of but enforces a rule of trade. “ That the raising of the price of freights for the transportation of merchandise or passengers upon our canals is a matter of public concern,” said Jewett, J., delivering the opinion of the Supreme Court of New York in Hooker v. Vandewater, 4 Denio, 349, “ and in which the public have a deep interest, does not admit of doubt. It is a familiar maxim that competition is the life of trade. It follows that whatever destroys or even relaxes competition in trade is injurious if not fatal to it.” So agreements or combinations the effect of which is to prevent or withdraw competition are held to be against the policy of the law, and void. Morris, etc., Coal Co. v. Barclay Coal Co., 68 Pa. St. 173; Crawford v. Wick, 18 Ohio St. 190; India, etc., Assn. v. Kock, 14 La. An. 168; Doolin v. Ward, 6 Johns. 194. See also cases
In questions as to restraint of trade, and public policy, it is the injurious tendency which the law looks at as well as the actual result. By refusing to declare contracts of a certain sort void, the law necessarily sanctions them, and by enforcing them encourages their spirit. It seems to be urged that if the appellant does not perform the contract, it can at least pay for non-performance. But if the law refuses its sanction to a contract, it is plain that a violation can create no cause of action.
But, in addition to the fact that the appellant was thus compelled to use the car-transfer at Venice in order to do-its duty as a common carrier in case of car-shipments,, there was no connection between the appellant’s railroad at its terminus at East St. Louis and the river at that place,, and there was no track by which cars could have been switched on to a ferry-boat. Into the facts upon which depended the practicability of making such a connection, whether arising out of the provisions of the contract of 1864, or depending on the nature of the ground or the ownership by another railway company of land between the appellant’s yards and the river, it is not necessary to go. It is sufficient that the appellant was not called upon to-make such a connection until there was a car-transfer to-connect with; and many months before there was a car-transfer at East St. Louis, the course of business, as shown by the directions of shippers and consignees, had taken,
It appears that in many instances contracts were made with shippers, or directions were given by them, by which their car-freights were to go by way of the Venice ferry. These directions do not determine the liability of the appellant, but they serve as one test of the application of the rule which has been laid down. The appellant was not bound to turn the course of trade or to divert car-freights from that route to which the interest and convenience of the owner of the property directed it. These directions the carrier could not mistake, and it was justified in obeying them. By the judgment of the court below, which holds the appellant liable for ferriage of the car-freights, the element of the appellant’s control is at one time apparently made the basis of an assumed liability, and at another time treated as immaterial. But a still more singular result is worked by this judgment. It is based upon an assumption
In addition to what has been said as to the contract of March 9, 1866, between the Yeniee Ferry Company and the appellant, it is necessary to say only a few words. As above stated, it was what was done under this contract, not what the paper contains, that is the essential matter. The traffic there provided for was traffic restricted to that point where the Yeniee ferry had its exclusive privileges. No substantial objection ai’ises upon the contract of March 9, 1866, aizd the supplemental contract of July 11, 1867, if the cozztract of April, 1861, is properly cozzstrued.
The proper scope of the latter contract has already beezz indicated. Under it the appellant could not take the initiative in building up new industries or devising improvemezzts by which transportation would be diverted from the respondent’s ferry; zior could the obligation thus implied interfere with its duty to the public. In its action in regard to freights the appellant acted at its peril; but, in being g'uided by the directions of shipper or cozzsignee, not instigated or procured by itself, it could not err, for such directions were a sure indication of the necessities of the public azzd of the course of ti’ade.
For the reasozzs givezi, the appellant was not, upon the evidezzee adduced, liable for ferriage upon azzy of the car-freights, azid the judgmezzt against it was so far erroneous. The judgment is accordingly revez-sed and the cause remazzded, to be proceeded with accordizzg to this opinion.