26
j"
"J'E.D1i:nAL REPOR'l'ER;' 'Vol. 50.
tlounsel, to' insist 'that the, charges are; lnot 'sufficientlyspeciflQ. If they are ,trtie;:theloomplainarit' has riot full' earnings'lWEvb:ldMhe boob appear to have been 'properly 'kept, (and it is nottlisp'tlted that the kept: books of account,} and the com· plainan,Hecei\'ed its fuUshare oNhe joint thus !shown, it has the,righUo establish by competent evidence, if there hesueh, that the bobksare:not correct, and that the defendant took credit'f@rmore money thandtex,pended or ,was entitled to retain. It was staled at the argu. D1ent't:batthei CQmplllinarit would, be satisfied witn '. a reference covering thelsix"DJoriths prior to the termination 'of. the agreementj'snd, if unable to ,establiSlb, its charges for that time, it would not ask a reference cover· ing any.of"the preceding will thel'efore be entered reJemWg:tbe,ease to.Mr. HenryW.Blshop;oneof:themasters, to take ,teshimicmYiiand report to' tb6'courtwblrther, during"the months of April, May.,June, July,: Ilnd Notember, 1890, . w ithout: th,e[ knowledge or of theeOll plsinant, the ,defendant deducieti';ft<»;Jlr:therg,ross earni,ngs amtltmtsin exceSll i of actual expenses, or ine:Xcessi of what it . waS i en,thled t'odElduet and retain under the agreet' that the· accoiuntbetween the parties be stated, siowing:tliebalance due from one to the other for said months. . ii':'; ;: : .: : "
,i :',
lAND Co. t,
(Olrcu1.t Coun, D. South ,'. ,', '" .
Oarolina.
April '111i 1899.) I
;"d',!"1
,I
!, "
manUfacturillg company promising that, If a factory their p.roparty, they WjJI, donate to thllm acertaiu amoul,1t of land, and will promptly bUlld OF cause to he built to it a side track, sets ,,"forth in terms sum.cl.ently certaiu to ailp'Port a b111 for specific pel', !"
klette'l' from a'land oomplh.y to
PJ:llFORMA,NCE-WJi[EN MAINTAINABLE-CERTAINTY OP AGREEMENT.
."Bill ,Pine Fi.breeompany against the North for the specdic performance of aeontract.. Heard ol{demurr'et to the complaint. Demurrer overruled. . Flcriting,<ftJ1.1exand"er; fbt'complaililant. . for defendant. -.; J,";: ;., j ' ,
SnrbNToN;'DistrictJudge. The case comes up on bill and demurrers. Tbe b1llseeks' specific perforrnaJ}ce of a contract. The defendant, owner of a tract of lllpd on or near the Savannah river, opposite ,the city of inducements to the plaintiff to erect and put in operatil)h' a factory on 'said land. The bill sets out certain negotiations in a letter by the president of the defendant· Cbinpany to'the president of the complainant company in these "'NEW YORK, June 20th. 1891. "iT. B. N. Ber1'1/' Pres't. Southern 'Pf,neFibre Oompany-DEAR SIR: The North·Augullta Land Company will donatl:lto your company 3 acres of land,
SOUTHERN
r
<JO!,I1·. NORTij:· AUQQSTA LAND CO.
21
to be selected by it on its property opposite the city of Augusta, and will promptly bUi,I,d,or cllusetl? be. blJi,lttothe .1lUld 80 and when your fatltory is completed and machm'ery in successfUl' operation. will hundred dollars', \V()r.t,b of your treasury buy from you ($2,500) stock at its par value; payable in cash when your in successfuloperatIo,nas ,a,f()resaid.. .. . . . .' , . "PAT CALHOUN, Pres't. "The above Is conditioned upon your beginning work at once. I.'
"P.O."
The of lanel donated, and the deed executed and delivered. The factory, has boon 'erected and equipped with valuable and costly machinery. The specific perroriuanceOfthat part of the traqt is sought which provides that defendant·" wiHpromptly build or cause to thelalld sod'onated a,side track." Defepdant demurs On several grounds, which may be summed tip as follows: ,That equity in the bill; that, the letter being the only contract in writi'ng, no parol evidence of pre-existing negotlationli can be admitted, and that all allegations of such negotiations' have nO place in the bill; that the terms of this letter are vague and uncertain; that it is not alleged what interest complainant will have in the side track when completed, nor how it is to be completed, 'nor that defendant has the right, power, or authority to completE' it; that the daD1(1ges alleged are remote and consequential; that complainant has an adeq:uate and complete remedy at law. . We now hear the case on demurrer. For the purposes of this decision we contine ourselves to the letter above quoted, without prejUdice of the questions arising under the statute of frauds. In that letter the .contract distinctly provides for a side track to be built to the land so donated promptly. The term" side track" has a well-known signification. It means connection with some railroad, affording communication with market. Its value to a factory in operation is self-evident. Its absence would cause great injury to the factory, not only increasing expense upon every article needed for or turned out of the factory, but perhaps operating, in this age of competition, latal rl'sultsto its business. There is no want of sufficient certainty in the terms of the agreement, and there is sufficient evidence of continuing and increasing damage which cannot be compensated except by a succession of verdicts. Why the sidetrack was not built does not appear. The court will not assume a want of bona fides in a contract. On the contrary, the presumption is that when parties contract they honestly believe that they can carry out the promises they have made. For the present we must assume that when the defendant contracted to build the side track it was able to do so. If this hope has been disappointed. and such circumstances exist as make it impossible, these must appear on a full hearing. Thedemurrers are overruled; with leave to defendant to answer over.
28 J,
UNriED ST.&.n;e
UNION
Co. et· aI. AIn-ALmiu,TIo1l' O. ll'Ju.ll'-
Nelmuko. Harch SO, 1. 1U.JLwi1'·:.Urn TBuGRAl'JJ OJuBB. , ' COMPANIES-GoVERNMENT
Under the gElZJ,8ral ru!.etm.t ,tlle gratlt of a franchise of a public nature ill personal '. tQ-,>the grantee, and cannot be alienated without the consent of the government, the pnvilege granted to the Union Paci1l.c Railway Company by the acts of 1862 and 1864 of constructing and teiegraph line along its right of way, for publicand commerciai uses; ·ClI.rried with it a corresponding obilgati!>n on the part of the com,p\IUY to llne"and it had no authority to transfer the franchili.e'to any other corporation. , "SAMB.' . '
\, :Nor ooflid ltUOhauthoritY,.be inferred from section 19 of the act of 1862, whloh authorized the company, indlsohaJ;'gll 0:( Its obligation, in the firs.t installce to make an arrangement with the companies owning tl\e then existing teiegraph line between and the JrlisSQlolri river· whereby that line might be removed and . ,Ban: placed upon. tbe railroad, right of way, the company having failed to make such an arrangement, and having accepted the whole franchise by constructing a new line . of itsowJ+ . . ' Aot July 2, 1864, Pl'Oviding"for increased facilities of telegraphic oommul1ication, !'and commonly lrnown as the·"Idaho Act," granted to the United States Telegrap.h company, a New Y!>rk corporation, a right to construct a line from the Hissoun'river to the P40iftc, and illso authorized the railroad companies to make an arrangement with this"eompaIiy for the construction of its line, like that authorized ,by section 19 of the ,act of 1862. Under this act part of the line was con· strUCted In conjunction with the Kansas Pacific CompanY.i.and then the United ,'States Telegraph Company consolidated with the Westeru union 'l'elegraph Company, and the line was finished under an arrangement between the latter oompany and the railroad. Held, that tb,is franchise was g-ranted for the purpose of construot,in,.g 'Boll 1,·n.d.ependent . an.d, altho.ugh the consolidation was authorized by the pf New York, thll w estll:\'b ,Union Company did not thereby obtain any right to acqlilNjthe telegraphio franchises granted by the Union Pacifio acts. In y,WWI of, tpe fact th,at tli,e .telegrap:tllc .franchises granted by the Union acts w.erEi.inaIienable:bythe grantees, ,!!ond also of the express rese17vation therein of thll' 'l"ightto "add to, alter, amend, or repeal." had'full power to pass the act ot, 4.ugust 7, railroad and telegraph oompanies which received government aid to henceforth operate tbeir telegr.aphlines by 1ihemselves alone, aud thr@ugh their own offioers and employes. AOT,. . .' ' ' '
"
8.SAME-:-;-bQNSO;LIDATION 01' COMPANIES; J
SAME..;;..REGuLATION BY GOVERNMENT.
Ii.
e.
.In !' Prpoeedjng instituted the :trnlted States to annul a CQntfact whereby the , telegrapbibfranchises of the Union'Pacific Railway Company were transferred to the Tele«raph ,OompanY,the intention and power of congress to prevel:\t ,S\1,qh, transfer, being .clear, the, court oannot oonSider ;any arguments based'iipdIi'toe allilg-ed faCt that the contract is beneficial to the peouniary interests of botb.therailway company and the publio. . SA:!lE-iJURIIlJtICTION 01' COURTS. .
The govern1bent, being the creator of tlie Union Pacific, Railway Company, and a large contrlbntbr to its finanees, and having a pecuniary interest in its successful ,management, has fullsuIlerVisory p!>wer over it, and may make and enforce through the reasonable regulations not interfering with vested rights. A,lthoug!;l the m.ain purpose of the act of 1885 is to compel the railroad companies to exercise treiJi' telegraphio franchises directl;}' by their, own officers and employes, the govyet, in enforeiIlg this requirement as against the Union Pacific ernmeD;t;J:/IlIY"properly. proceed by a bill in equity instead of by mandamu$, since the Western, Union, Telegraph Company has acquired property along the right of 'waYj and :its' interests therein can only be properly defined and protected by the fiexible Pfooelillreof a court of equity.
i. '
r. SAME-EQviTY JURISDICTION.
In Equity. Bill by the United States against the Western Union Telegraph Company and the Union Pacific Railway Company to cancel A whereby the telegraphic franchises of the railroad company