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D.March 19; 1888.) r'1 ' :, j .J" (}Jl': 1]A.!iTllj:S. .';i, ".'. tWQ rail:way companills, a "
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. Where;a joint line shall be ,obtained OF supplied for the USe does not 'expressly provIde 'of the 'linie, ithe fact'that one company for several yeal"ll after the contract was in,tQ Paid, otbel' for !the 1:\8e ,0.£ asa cou,str,uctI09.Vl'!olled on ,the partf6s, and will such payment as a part 01 the .' . . , ," ", ' .. ., ," '>I
. ,In Eqttity.' ··On' exceptions to. mnster's. report.. '. In 're l intervenihg pilL tition of Sit' Keokuk & 'Northwestern Railroad Goilipany. " H. H.Trimble' and Pa1JmJJr Trimble, :for ' .H. S. Prie8t, for receivers. I' ,
TnAi'ER, J.The 'question which' on the intervening claim of the St;'1:ohis, Keokuk&'NorthwestethRailroad against' the receivers of the Wabash refetenQe to the provisions of a contract entered irito <on'Febtuary 4, W79, the St. Louis, Kansas City & Northern Railroad as party-of the first part, and the intervenor as patty of the second part;' That contract recited "that the"intel'venor desired to complete it"l,Hne of Tailway from Clarksville,Missouri, to a connection with of the first party at or .near Dardenne(nowSt. Peters, and forlDa joint line between the railroad corilpatIies'from St. Louis over the'railroad of the' first party toth6 proposed ebnnection, and from thence over the railroad of. said second party Iowa, fdr' the bftransporting freight, mail, and express cars on'terms mutually toboth parties. In consideration of the premises, and the undertaking on the part of the second party to construct and complete itsroad,and makesuch connection and. provide the necessary facilities for such joint busine::;s at said connection; the 'first party agreed With the second party to form such 'joint line of from St.Louis, Missouri, to Keokuk, Iowa, for senger, freight, mail, and express the arrangement to commence as soon as the second party had completed its tracksfrom'Clarkesvilleto the connection aforesaid, and to continue for 50 years. The party of the first part agreed to furnish all depot and terminal facilities at St. Louis for the joint-line business; also all the motive power to haul the trains of such joint-line business between St. Louis and the junction aforesaid at or near St. Peters, pay all bridge tolls over the St. Charles bridge on the trains and business of the joint line, and give the business of the joint line the same care, attention, and facilities that it gave its own. It was also mutually agreed between the parties that for the services, facilities, motive power, and bridge tolls aforesaid, including station work at the city of St. Louis for such jointline, the said first party should receive thirty-five hundredths of all the earnings of the joint line, and the
CENTRAL TRUST CO.
YOR;K,II. W;ABASH, ST. L. & P. RY. CO.
255
se,condparty shQl1ld thereof. rt,,'aS mqt:uany agreed.tb:at, as, as practicable"time-cards'should be arranged so that tbe trains of the second party. might be hauled to and from St; Louis with. the trainEl of the, firat,party, but when' not practicable, the first party was to and haul the trains of the secondpartyon the time of the .second party. It was furthermore agreed settlements should, be made mODtbl)" between the. ,parties on or before .the 15th day of ea.chd:llonth, anQ. that all minor details not menin,tlle,contract shonld be arranged between the, parties in R spirit or equitYiand .fairness, and with a due regard to economy." Such were the material provisions of. the contract. After intervenor's railroad was completed to St. Peters, operations begaIiuuderthecontract, and have the time by,thelSt. Louis, Kansas City & North.. been successors, to-wit,the Wabash; St. Louis & Pacific Raib.7Qad, .and the. reeeivera of the last-named corporation. From jhe COln,liIlep.CemeQ.t Qftraffic, over the joinkline until June 1,1885; theKan" sas Oity &,;N'Qrthen Railroad,andeacb of its successors, allowed and paid mileage on, all its freight,' baggage, and passenger cars employed-in the QUElipBSsof the joint line, between St. Peters and,St.Louis. '!'he mileage ,Sl>' ll11ow:eg 'the'.it;lt,ervenorwfts the usual mileage paid· by, all railroa,gEl ;oW{Qreigncars which passover their roads when they' have an inteI:ellt,in the, earninga oftbe foreign: cars, and are not simply paid a cer;tain sum for hauling them. In June, 1885. a year after the receivers Qf)theWabash,St. Louis,& Pacific Railroad ;"'e1'e. appointed, they refpPlty nQ more, mileage on the intervenor's passenger and baggage the cot;ltraotunder which the jointJine was operated did not. Qbligate them to pay such mileage. They continued, however, to pay, mileage on freight cars the same as before, and continued to do so up, to the time of the. hearing. The present claim is for mileage on passenger and baggage cars, belonging to the intervenor that passed over the jQintlioe ,between St. Peters and St. Louis·from June 1, 1885, to April 1, 1886. TAe sum claimed is $3,544.80, and the same was allowed by the lllaster., ' The receivers have excepted to the allowance. 'The fact,that the St. Louis. Kansas City & Northern Railroad and its ,successors, while acting under the contract, paid mileage on all the intenl'e;nor'sfreight, baggage, .and passenger cars until June, 1885. and that mileage was thereafter paid by the receivers on freight cars, creates ,a presumption that· the payment of such mileage was within ,the contemplation of the, parties who made the contract, and that, as they ·construedit,,the contract required the payment of such mileage, either by reason pf89me provision of the,agreement, or because of some usage apPlicab1ew the subjeqt-matter of theoontract, in the light of whiehthey contraet,ought tobe,aud would be, interpreted.rThe agreem,e.nt ,being executory.' the practical construction adopted by, the and by .their successors,during a period of several, years, is eQ.tit,lSldi W,great, if not cQutrolling,linfluence in determining what is the o.f;'thesame, as was haldin Topliff v'. Topliff, and Ohicago,v· .sheldon, 9
FEDEnAL REPORTER.
134·. ; It is well understood thatthep'ractical constrllctioh ols.'d>n:tmct adQptedby the parties thereto will not control or overridelanguage'that is aoplain as to admit'ofno controverfly tlsto its meaning. ' In aU such cases the intent of the parties must be determined by thEj 1anguageemployed rather than' by their acts, but if the language Jemployed is of dQubtful import, or if the contract contains no given point, or if it fails to define with. certainty the duties of the parties with respectrio a. particular matter or in a given emergency, then beyond all to consider how"the parties ha:ve construed the instrllmentwith respect tosunh debatable points.!fWth parties to an agreemerit fora considerable period, and while free to act, treat a con'tract asiwposing certaill duties or obligations, such oonduct ought to settle the construction of the instrument if its provisions with reference to such matters are to any extentun'Certain, obscure,6r incomplete. ".A. construction of a contract adopted' and acted upon by both parties will be regarded as worked into the contract," says Dr; Wharton in his work on Contracts, vol. 1, § 206. if suchconstructiondo'esnot 'conflict with its express provisions. 'l'he'manner in which a construction ofa contract adopted and acted upon by: both parties may! 80 to speak, be worked iinto a contract,' is w.ell ill ustrated in'PtYpliff v.. Topliff, above· cited, and also in the case of Robi'nson v.U. S., 13 Wall. 363.· Ih th'elatter case Robinsop,'had contracted to deliver a certain quantity of :batley, but whether the delivery slmuldbe made in bulk or in sacks was not specified. For spariod of six months the barley was delivered in Sacks. The cour,t refer tathis fact as a proper reason ·for 'the oontract as requiringa delivery in sacks,rather than in bulk. It will 1'l11'ely be found, we apprehend, that a court will go far' astray in arriving at the actual intent of the parties to aoontract (which, after all, is the purpose of all rules of construction) by adopting that interpretation,whioh the parties, without compulsion, have themselves adopted and acted upon. None of the foregoing. propositioris are directly controverted· by the' receivers' counsel. The contention 011 their part seems to be that it matters not how the parties have 'construed the contract now in ·question,. because its provisions,as:they claim,:are too plain to admit·of. any :reference to the manner in which they may have interpreted it. Thllir view seems to be that in the matter of paying mileage the St. Louis, Kansas City & Northern Railroad and its 'successors not ·only made payments by way of gratuity, which the contract dearly did not require them to make, but that they have actually paid mileage on cars between St:Petersand St. Louis which tbecontract 0 bligated the intervenor to furnish free· of charge. We' Temark, in the first place,. tbat it is at least singular thl;tt'such payments should have been made: for several years if the c<>ntraot on its face' really ,bears such unmistakable· evidence that the payment of !fi1ileage on inter,venor's cars was not contemplated when the'contract was made·. It is .urged, however, that such payments were made without any reference to the contract, and throngh oversight; but:even if. that be so, it is oertainly the duty of any persOn, who at this late day contests intervenor's right to mileage under the terms of theeontractl' to 'point out someprovisioh J
CENTRAL TRUST 00. OF NEW YORK V. WABASH, ST. L. &: P. RY. CO.
257
or provisions which in clear and unmistakable language show that such payments were not conte'mplated. We think that the receivers' counsel have signally failed to make such 'showing. Instead of pointinFt us to any provision of the contract which clearly made it the duty of the intervenor to furnish freight, baggage, and passenger carS free of charge for the business of the joint line between St. Peters and St. Louis, we are favored with an elaborate argument, the purpose of which is to show that by reason of the situation of the parties at the time the contract was made, and view of certain provisions of the contract,we ought to infer'(although it is not directly expressed) that in point of fMt it was the inten" tion of the parties that no compensation should be paid for the use of intervenor's cars between the points last named. Possibly, we might>so infer, and adopt that as the correct exposition of the contract, if the parties themselves (who certainly ought to know what they did intend) had not adopted a different construction of the agreement, and acted upon it consistently for a series of years. .Thefact is that the contract under consideration, while it is explicit iIi some of its provisions, and while it provides clearly what cOl).tributions shall be made by the respective parties to establish the joint line, and in what way the earnings of the joint line shall be divided, wholly fails.to provide wbo shall snpplycanl ove]!'theimtire jQint line, or any part of it for any class of business transObvtously, the line could not operated without cars. Tile parties must have had some intention with respect, to the supply of rolling stock. But for some reason the contract does not in terms proyide who shall furnish it. This,matter was left open by the explicit provisions oHhe agreemeht, and is :to be determined, if at all, by im'plication. On the one hand, as has been before remarked; it is contended that it ought to be inferred from what is expressed that it was intervenor's duty to supply rolling stock between St Peters and St. Louis free of mileage charges. On the other hand it is argued with much plausibility and fot6e that no such' inference', can properly be drawn" It' is urged that the parties intentionally omitted to bind either party to supply all or any specified number of cars for. use on the joint line in view' of the inherent difficulty of r.arrying olit any such prOvision, if made.: It is ftirtllermore urged that the parties to 'the contract intendedt61eave the matter of car supply to be regulated by the exigencies of business; and thnt, having leftthe matter to be so regulated, they alsointenrled to al'-' low mileage charges on aU of intervenor's cltrs that were used on the joint line between St. Peters and St. Louis, according to a custom that then prevailed among railroads. The conduct of the parties accords with the latter view. We refer to the controversy between counsel as to the proper interpretation .of the contract, not with a view of deciding which interpretation ought to prevail if the question was res integra, but as evidence of the fact that the contract considered by itself is fairly susceptible of different iutetpretations, because it doeS not in terms provide how cars . shall be obtained or supplied for the use of the joint line. Such being the case,and a controversy having nowll.t1sen as to ,the construction of the agreement, we have no doubt that lve are authorized to settle the conv.34F.no.4-17
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tpatco:Qstructioij; 'Y4i.ch the parties atld acted upon yellrll. , We,4Q not hoIIl City & Nor;t;hern Railroad and ill paying D:,li1eagecreatesl1ll estoppelagainst it and its sucso putt;lpon the cessors, ,but.we do holQ. meut shquld deterIPine its tJ;ue QOnstruQtion, unless. it is at variance,with the provisions of tJle instrument, which in this instance does nqt . . ' appear to tis to be the, CaM; . ," . In Our opinion, the Anding of tbemal!lter was,fortp.e right party, we accQrdingly pverru]ethe, l¥ld confirm there1>0rt.,
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Where.a decree fillds a:C(>l)uact r.egarding various loans mil-de by defendao..t. and.directs Rp,a<;countingtllereof, a motion to modify tbe decree so as to except certaIn of the wl1l be denied. although an appeal has been allowed; since the' decree, 'if ititerlocutory, can be corrected on the coming in of the and; if final. by the supreme.court,
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, On ;Moti9P,to ?do,dify Pecree., ,';l'he original opinion is reported'in 33 ";; : ..... <. . ... J. P., BrOC'kuJay, for compJllinllnts. :&: ;Vaile. forq.efendant.. "
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of 1888, siglled and entered, and now a motion. hltsbeen made for modification, of that eree. W!lS giyento cqmplain,ants,who, however, failed.to appear, ,by mail. as. insufficifilncyof notice; asWelllj.s,that the fads did not justify any such moq.ifiGatiQD,,' ,; '1'hedefendant w.ishes the decree. modified in two respects: .<l/::te,py the. insertion ora clause exdudingthe private.debts;of the cOn:mll\iullPliS :ij;enryand· the Colorado Loan & Trust Compwy; jandtbe:seco!¥it,:byexaluding.two 10ans,-01+e of March lQ, 1884, for.860,OOO,andt Qne .of. April 1,lS84, secured by deeds of trust. upon some farm :landsbelpnging to two onhe .ditcb cqm· panies. SO JR.],' as the it iscleaJ:ly The .decree does not include tpe private debts referred. to, and whe.n th,e decree was being pr,eparj:id the lapgntlge pfthe draft as presented to D).6 Wfl,B cbarigEldpurposely, of counsel, so all no.t ta debts. l filed indicated that.they Were not"in(lluded, and tQ.eir .0r.nissipD,.from. the decree is fully as as a e,xcludingthem., ',!'he. pt'Pyision in the decree fora state,. BREWl!ll\,J.