Patterson v. Atlantic Coast Line R. Co.

• Decision Date: 16 January 1919
• Docket Number: 4 Div. 755
• Citation: 81 So. 85,202 Ala. 583
• Parties: PATTERSON v. ATLANTIC COAST LINE R. CO.
• Court: Alabama Supreme Court

81 So. 85

202 Ala. 583

PATTERSON v. ATLANTIC COAST LINE R. CO.

4 Div. 755

Supreme Court of Alabama

January 16, 1919

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Ejectment by M.J. Patterson against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

Sayre J., dissenting.

The portions of the contract directed to be set out are as follows:

"The parties of the second part covenant and agree: ***

"Thirteenth. It is mutually covenanted and agreed that this contract shall remain and be in force for the space of one year from date hereof, provided there is in the meantime no violation or breach of any of the stipulations on the part of the said party of the second part; that at the end of the said period of one year, if this contract shall then be in force and effect under its terms and stipulations, it may be renewed and extended by the party of the second part for another period of one year, upon the same terms, conditions, and stipulations as are herein contained upon the parties of the second part, giving to the railroad company, at least 30 days before the expiration of the said one year, written notice of their intention and desire for such renewal and extension, and in such event, upon such written notice being given, this contract shall be renewed extended, and continued for a second period of one year: Provided, however, that the parties of the second part shall be in successful operation and business at the end of the said first period of one year, when the said written notice shall be given: And provided, that the amount of freight shipped to and from said side track, for the account of the party of the second part, shall be in the opinion of the said railroad company sufficient to justify such extension and renewal of this contract and the maintenance of the said side or spur track, and continue in force thereafter, and until 30 days' written notice shall be given by either the said railroad company or the parties of the second part to the other of its desire to terminate and end the same. Upon such written notice then so given, this contract shall terminate and be at an end.

"Fourteenth. That the said railroad company shall have the right, privilege, and power to cancel, annul, determine, and put an end to this agreement upon 30 days' notice in writing to the parties of the second part, and same shall be likewise canceled, in the event of the failure of the said parties of the second part to keep and perform any of the covenants and conditions, agreements and stipulations, herein contained on its part to be kept and performed."

W.R. Chapman, of Dothan, for appellant.

John R. Tyson, of Montgomery, for appellee.

THOMAS J.

The suit is in the nature of ejectment. The error assigned is based upon the court's refusal to give the general charge requested in writing by the plaintiff.

In short, the facts are that on November 30, 1911, M.J. Patterson, Dothan Foundry & Machine Company, and Dothan Hardware Company, owning contiguous lots, entered into a contract with Atlantic Coast Line Railroad Company, for the construction, maintenance, and operation for the time indicated, of a spur track leading from its main line across two of the lots into that of the Dothan Hardware Company, which contract was executed. Neither of the parties had any interest in the others' land before and at the time the contract was executed.

The locus in quo, shown by the recitals of the agreed statement of fact, was the following described lands, owned by the plaintiff on the date of the execution of the contract, situated in the city of Dothan, Houston county, Ala., viz.: One strip of land situated on the west side of North Appletree street, facing said street 15 feet and extending back in a westerly direction and even length of 124 feet, being bounded east by North Appletree street, west by Dothan Foundry & Machine Company lot, and north and south by the property of M.J. Patterson.

Prior to institution of the suit, when Dothan Hardware Company, owner of the last lot into which the spur track extended, was adjudicated a bankrupt, it ceased to exist, and the lot in question was purchased at its bankrupt sale by Malone Bros., who thereafter sold a portion of it to Dothan Grocery Company. More than 30 days prior to institution of the suit, and long after Dothan Hardware Company had ceased to exist, written notice to terminate the contract was given defendant by M.J. Patterson and Dothan Foundry & Machine Company. This notice was not joined in by either Malone Bros. or Dothan Grocery Company.

It was admitted that at the time of bringing suit and of giving said notice, there were located on the spur track business houses of M.J. Patterson and Dothan Foundry & Machine Company, in which business was conducted as when the contract was executed; that the warehouse of Malone Bros., also located thereon, was receiving the same use of the spur track formerly received by Dothan Hardware Company; and that Dothan Grocery Company in the conduct of its business received freight over said spur track, at its place of business erected on a portion of the Dothan Hardware Company lot.

Defendant admitted possession of the land sued for, at the time of notice and of the institution of the suit, and that plaintiff owned fee-simple title to same, subject to whatever rights defendant had by virtue of the contract. It had been more than two years prior to the institution of suit, since plaintiff received a shipment of freight delivered over this spur track.

Appellant insists that the only parties to the original contract, who had capacity for parties of the second part to terminate the contract, and who were bound by its covenants and stipulations, desiring to terminate the same under its terms, gave due notice of termination to the defendant. On the other hand, the insistence is that the bankruptcy of the Dothan Hardware Company and the purchase of its properties by third parties at judicial sale made termination dependent upon written notice joined in by the purchasers.

The contract recited that the parties of the second part had requested the construction of the side track for their use and benefit; and the respective footages on their properties, over which the same should extend, was stipulated. Its recited consideration was "the sum of one dollar *** and *** the mutual advantages to accrue to the parties hereto."

It was covenanted on the part of the railroad company: (1) That it would furnish all material, and at the expense of the second parties construct the spur track, the title to the materials so furnished to be retained in the company; and (2) to deliver and receive cars and freight shipments consigned to or from parties of the second part. The parties of the second part agreed to grade the roadbed, exonerate the party of the first part from liability as a common carrier, and to load and unload cars promptly at their own expense; to pay car service charges and observe the rules of the Public Service Commission and demurrage bureau; to release from damages for nondelivery of freight or of cars, and for that negligently caused by defendant to stock; to release "from all claims for damages owing to or resulting from fire communicated to any improvements located or placed on or contiguous to said spur track," and to indemnify the first party against all such claims by others, to maintain and repair crossings; and to pay all taxes and assessments, and maintain lights, etc., for switches and crossings. It was further covenanted by second parties that they would each "ship and receive over the line of the railroad controlled and operated by the said railroad company all goods delivered by them or received by them to and from points reached by the line of railroad of the said railroad company, and its connecting lines or roads, provided that the rates or freight charges of the said railroad company shall not be higher than the lawful rates over other transportation companies for like goods to and from such points and that reasonably prompt service and delivery is made." Paragraph 8.

The reporter will set out the thirteenth and fourteenth paragraphs of the contract, giving the period of time in which the contract was to be of force and the method by which it should be terminated.

The moving consideration for this contract, on the part of the railroad company, was that the second parties should and would each "ship and receive over the line of railroad controlled and operated by the said railroad company all goods delivered by them or received by them to and from points reached by the line of railroad of the said railroad company, and its connecting lines or roads," on an equal freight rate with that obtaining over other transportation lines for like goods to and from such points, and the lawful freight charges to be realized on such shipments, and that, in addition, on the basis of the lawful freight charges therefor, the railroad company should have the control of such freightage over its connecting lines.

The consideration moving to the parties of the second part for the contract was facility in freight movement, together with diminished drayage and like expenses, to result from the individual use of the spur to each of the parties in the conduct of their several individual and corporate businesses, whether located on the spur or elsewhere in Dothan.

The stipulated period of time in which the contract was of binding force, and the specified method of termination or of renewal, are matters of controlling importance. Under the lease: (1) The original parties were bound for one year unless contract sooner terminated by the railroad company for cause; and to that...