Boston & M. Railroad v. Portland, S. & P. R. Co.

• Decision Date: 28 February 1876
• Citation: 119 Mass. 498
• Parties: Boston and Maine Railroad v. Portland, Saco and Portsmouth Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 498

Boston and Maine Railroad v. Portland, Saco and Portsmouth Railroad Company

Supreme Court of Massachusetts

February 28, 1876

Argued November 15, 1875

Suffolk. Contract. The material facts, as they appeared from the pleadings and a report of the case by Devens, J., were as follows:

The plaintiff and the Eastern Railroad Company made a joint contract with the defendant, in 1847, by which they had possession of the defendant's railroad and other property, under an agreement to run and operate the same paying the defendant a fixed dividend on its capital stock therefor, and taking to their own use all the income and profits of working the road. They further agreed to make all betterments, improvements, and additions to the equipment which they should find necessary or expedient, and the defendant promised to pay them for such betterments improvements and additions, at the termination of the contract. The contract was terminated, according to its provisions, in January, 1871; and the plaintiff contended that there was due to the plaintiff and the Eastern Railroad Company at that time, from the defendant, about one million of dollars for such betterments and additions; and in this action sought to recover one half thereof.

In May 1871, the Eastern Railroad Company made a new agreement with the defendant for the exclusive possession and running of the defendant's road, which agreement contained the following clause:

"In furtherance of the objects and purposes of the parties hereto, the said Eastern Railroad Company agrees with the said Portland, Saco and Portsmouth Railroad Company that the said Eastern Railroad Company will forthwith assume and will pay, release or discharge all the debts, liabilities and obligations of every description of the said Portland, Saco and Portsmouth Railroad Company, by reason of any matter or thing heretofore done, suffered or transacted by said Portland, Saco and Portsmouth Railroad Company, or which it may hereafter become liable and bound to pay or do, by reason of any acts or omissions of the said Eastern Railroad Company as the agent of the said Portland, Saco and Portsmouth Railroad Company, under this contract, and will at all times save and keep the said Portland, Saco and Portsmouth Railroad Company harmless and indemnified from and against all claims, penalties and forfeitures, suits and demands, for or by reason of any of the said debts, obligations or liabilities, and all debts, obligations, liabilities, penalties and forfeitures arising from any of the acts or omissions of the said Eastern Railroad Company, as agents as aforesaid or otherwise, so that the said Portland, Saco and Portsmouth Railroad Company shall not suffer any loss or injury thereby, and will obey all orders, judgments and decrees of any and all courts having jurisdiction in the premises, and save and keep the said Portland, Saco and Portsmouth Railroad Company, its property and franchise, from loss or injury thereby and protected fully therefrom."

Before bringing the action, the...