E. Ry. Co. of Minn. v. Tuteur

• Decision Date: 09 January 1906
• Citation: 127 Wis. 382,105 N.W. 1067
• Parties: EASTERN RY. CO. OF MINNESOTA v. TUTEUR ET AL.
• Court: Wisconsin Supreme Court

127 Wis. 382

105 N.W. 1067

EASTERN RY. CO. OF MINNESOTA

v.TUTEUR ET AL.^a1

Supreme Court of Wisconsin.

Jan. 9, 1906.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

Action by the Eastern Railway Company of Minnesota against Joseph Tuteur and others, impleaded with John Promberger. From a judgment in favor of plaintiff, defendant Tuteur and others appeal. Affirmed.

The plaintiff is a railroad corporation operating a railroad line from St. Paul, Minn., to the city of Superior, and owning and operating docks and warehouses in the city of Superior for the discharge and storage of freight, as well as the transfer of through freight from its cars to lake carriers, and vice versa. On April 20, 1899, it entered into a written contract with the defendant Promberger, by which Promberger agreed to take charge of and operate its docks and warehouses at Superior, and handle all freight passing through the same during the navigation season of 1899 for certain rates figured upon a tonnage basis, to be paid him by the plaintiff. On the same date the defendant Promberger, as principal, and the remaining defendants and appellants, as sureties, gave to the plaintiff a bond in the penal sum of $16,000, to insure the faithful performance of said contract by Promberger. This action is brought upon the bond to recover damages for the alleged breach by Promberger of the freight-handling contract on August 16, 1899. The appellant Tuteur and his co-sureties answered, alleging, among other things, by way of defense that the contract in question was not a real, but only a simulated, contract, and that in fact Promberger was but an employé of the plaintiff; that it was unilateral, and contained no consideration or correlative promises on the part of the plaintiff; that it was indefinite and uncertain, and not capable of enforcement; that it was released and surrendered by mutual consent August 16, 1899; that, if there was any breach thereof, such breach was the result of a strike of freight handlers, and that the bond did not cover such a breach; that the sureties had been released by a modification of the contract made without their consent and by the making of premature payments thereon to Promberger; that defendants were not liable because Promberger was, to the knowledge of plaintiff's officers, an embezzler before the making of the contract, which fact was concealed by said officers from the appellant; that there could be no recovery, for other reasons not necessary to be now stated. The action was referred to L. K. Luse, Esq., to hear, try, and determine. Upon the trial there was no dispute as to the formal execution and delivery of the contract and bond referred to in the complaint. The contract was very lengthy, and the first three paragraphs thereof were as follows:

“(1) This agreement, made and entered into this 20th day of April, A. D. 1899, by and between John Promberger, of the City of Superior, County of Douglas and State of Wisconsin, party of the first part, and the Eastern Railway Company of Minnesota, a corporation organized and existing under the laws of the State of Minnesota, party of the second part, witnesseth:

(2) That, whereas, the party of the second part owns, controls and operates docks and warehouses and rail and lake terminals at Superior, Wisconsin, in connection with its line of railroad, and the business appertaining thereto; the said docks and warehouses are those usually constructed and operated for the purpose of receiving, forwarding, transferring merchandise, freight or other property handled by the party of the second part in its business as a common carrier:

(3) Now, therefore, in consideration of the covenants and agreements hereinafter contained, to be performed by the party of the second part, the said party of the first part agrees to assume charge of and operate the said docks of the party of the second part, under the direction of the party of the second part, or its representatives, in such manner as may best subserve the interests of the party of the second part; and the party of the first part hereby agrees to load or unload all cars or vessels and to properly stow all the freight, goods and merchandise arriving at or forwarded from said docks or warehouses of the party of the second, which the party of the second part may have charge of as common carrier, or own, or in its business of transporting, warehousing or handling merchandise at the docks or warehouses of the said party of the second part, situated as above described; and the party of the first part agrees to continue such service during the navigation season of 1899, as the said party of the second part, its agents or representatives may direct.”

Following these clauses came a number of subsidiary agreements on the part of Promberger, to the effect that the freight was to be loaded or unloaded from cars or vessels into warehouses or upon docks, as the plaintiff's agents should direct; that Promberger should furnish all necessary men for the work as the plaintiff should direct from time to time; that Promberger should employ competent and reliable persons to supervise the work under the direction of the plaintiff as to the manner of handling freight; that he would not employ persons objectionable to the plaintiff, and would dismiss any such persons upon the plaintiff's request; that he would divide his employés into such gangs as might be necessary to best handle the business, or as directed by the plaintiff's agents; that he would handle all gang planks, skids, hoisting machinery, and other appurtenances necessary; that he would perform all labor connected with the operating of the dock, the same as if it was operated by direct employés of the plaintiff, and take care of the docks, warehouses, and other properties, and keep them in good condition; that his men should commence work at 7 o'clock in the morning, and report for duty at any time thereafter as might be necessary for the proper handling of the business, and as directed by the plaintiff's agents, it being understood that a regular day gang and a regular night gang should be maintained; that the plaintiff should have the right to employ one or more check clerks or foremen to supervise the handling of freight; that the plaintiff should also have the right to select from Promberger's employés 10 or more men for the special work of calling freight and stowing freight; that Promberger should give a good bond in the sum of $16,000, with sureties, conditioned for the faithful performance of the agreement, and to protect the plaintiff against any loss from detention of said freight by reason of strikes, and from any damage or loss to property by theft, or otherwise, while the same was being handled, and with further conditions not necessary to be stated; that the expenses or liability for damage or loss to freight while being handled should be determined by persons employed by the plaintiff; that in computing tonnage of freight handled the weights shown by the boat manifests, railroad receipts, or railroad billing should govern; that flour and barrels should be handled on the basis of 200 pounds per barrel, and other freight usually transported by package upon the basis of such weights as were prescribed by the rules of the Chicago Board of Trade; that in the handling of freight in sacks or frail packages the load to be hoisted out of the hold or into the hold of a vessel should not be such as to damage the package, nor greater than as directed by the plaintiff's agent. The contract further provided that in consideration of the full and faithful performance of the above-mentioned agreements on the part of Promberger the plaintiff agreed to pay Promberger, on or about the 5th and 20th days of each month during the season of navigation (unless the contract should be sooner annulled), certain fixed rates per ton for the freight handled, according to the character of the freight and the necessary handling to be done, which rates it is unnecessary to state in detail; that it would employ a competent and reliable agent to supervise the business, Promberger agreeing to conform to the rules and regulations laid down by said agent; that it would furnish all necessary tow boards, planks, and other appurtenances for the proper handling of the freight; that all employés should have one hour for dinner, one hour for supper, and one hour for midnight lunch; that payments upon the contract were to be based on the freight tonnage handled during the period from the 1st to the 15th, and from the 15th to the last day of each month during the continuance of the contract; that it would furnish all necessary switching service, and do all the necessary switching of cars; that it would employ one or more trustworthy watchmen whenever Promberger or his representatives were not present. It was further mutually agreed that, in the event of damage to freight being handled, the same should at once be turned over to the plaintiff to be disposed of, and to make settlement with the owner; that, in the event that Promberger should conduct the business during the season of 1899 in a competent and satisfactory manner, he might, if he chose, “have a contract for the handling of said second party's freight for the year following the termination of this contract, such contract to be substantially in terms the same as this contract”; that as a further consideration to Promberger plaintiff should rent to him a boarding house located near the docks, at a nominal rent of $5 for the season, Promberger agreeing to maintain the same in an orderly and respectable manner, and to deliver the same over to the plaintiff in good condition at the end of the season; that it was understood between the parties that Promberger should be, in the performance of all his duties, an independent contractor, and subject to the legal duties and liabilities applicable to such contractors. The bond...