B. Perini & Sons v. Southern Ry. Co.
| Decision Date | 18 May 1951 |
| Citation | 239 S.W.2d 964 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | B. PERINI & SONS, Inc. v. SOUTHERN RY. CO. |
E. B. Wilson, Pineville, for appellant.
Henry L. Bryant, Pineville, for appellee.
Appellant, B. Perini & Sons, Inc., filed a petition in the Bell Circuit Court in which it sought judgment against appellee, Southern Railway Company, under the terms of a contract which was filed as an exhibit with the petition. The petition was thereafter amended and appellee filed a general demurrer to the petition as amended. The court at first overruled the demurrer but thereafter, upon reconsideration, sustained it. Appellant declined to plead further and judgment was entered dismissing the petition and granting the appeal.
Some time prior to September 20, 1948, appellant began a coal mining operation at Fonde in Bell County and by contract dated September 20, 1948, entered into a side track agreement with the Southern Railway Company under the terms of which it was agreed, among other things, that the Railway Company would construct commercial tracks to Fonde for the use by appellant in the process of moving coal from its mine and shipping it to the market. We are asked to interpret the terms of this contract.
In general the contract provides for the realignment of the main track of the Railway Company and for the construction of two industrial tracks at appellant's cost, but it was also agreed that appellee would pay to appellant in yearly settlements during a four and one-half year term the sum of $2 for each carload of freight delivered on or shipped from the industrial tracks to be constructed, with the provision that no such repayments would be made by the Railway Company after the amount had reached the sum equivalent to the cost of the installation of the industrial tracks. It was agreed that appellant should pay regular freight rates on its shipments.
The contract is clear, under its terms, concerning title to the side tracks upon the occurrence of specified events, because it is certain from the words used that the title (1) vested in appellant until he was reimbursed for construction costs at the rate of $2 per car shipped over the industrial tracks; (2) vested in Railway Company absolutely at the expiration of four and one-half years from the date the side tracks were in operation, regardless of whether or not the payment of $2 per freight carload aggregated a sum equal to the total cost of construction; and (3) remained in appellant during the four and one-half year term, except to the extent that refund of the cost of the side tracks had been made to appellant by the Railway Company.
The contract contained a clause under which the parties were given the reciprocal right to cancel the contract upon sixty days' notice and it was a disagreement concerning the meaning of this provision that precipitated the controversy involved in this case.
Within the first year of the life of the contract it was terminated by appellant (appellant's brief states that the operation was for a few months) and during this period 426 revenue producing cars were shipped over the industrial tracks. The Railway Company was billed for $852 for 426 cars at $2.00 per car.
After the contract had been cancelled, one of the side tracks was taken up by the Railway Company and the material was delivered to appellant at the latter's expense. The other track, appellant sold as it was. After these things were done, the Railway Company refused to pay the $2 per car for any of the 426 revenue producing cars shipped during the period of operation.
The contract was terminated under the terms of Provision No. 12 of the contract, which reads: 'That either party hereto may terminate this agreement at any time hereafter, but upon sixty (60) days' notice in writing, to the other of election so to do; in which event, upon the expiration of the time limited by such notice, the Railway Company may discontinue the operation of said industrial tracks and remove its property and fixtures therefrom, and from the right of way appurtenant thereto; and ...
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