Sullivan v. Louisville & N.R. Co.

• Decision Date: 29 January 1901
• Parties: SULLIVAN v. LOUISVILLE & N. R. CO. [1]
• Court: Alabama Supreme Court

30 So. 528

128 Ala. 77

SULLIVAN v. LOUISVILLE & N. R. CO. ^[1]

Supreme Court of Alabama

January 29, 1901

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Action by Martin H. Sullivan against the Louisville & Nashville Railroad Company. Judgment for plaintiff. From an order granting a new trial, he appeals. Affirmed.

In the complaint the plaintiff "claims of the defendant $125,000 as damages for the breach of a contract under seal entered into by and between said partnership doing business in the name of Daniel F. Sullivan and the said defendant on to wit, the 27th day of February, 1880, in which contract said partnership is mentioned and described as party of the first part, and said defendant as party of the second part." It was then averred in the complaint "that said partnership, to wit, Daniel F. Sullivan, was the owner of all stock of the Pensacola Railroad Company of Florida and was owner of the Selma & Gulf Railroad Company, and all the franchises thereof of the state of Alabama; and for the consideration therein expressed said partnership, to wit Daniel F. Sullivan, in and by said contract contracted to sell to said defendant, the said Pensacola Railroad, and the said Selma & Gulf Railroad," and as a part of the consideration for such sale it was stipulated as follows "Fourth. The party of the second part and its assigns hereby contracts to transport timber, logs, and lumber for the party of the first part and his assigns at such times and in such quantities, not less than twenty car loads, when shipped on main track, as he or they may require, over the said Pensacola Railroad, Selma & Gulf Railroad and Mobile &amp Montgomery Railway from and to any point on any of them at the rate of one cent per ton per mile, rating 5,000 feet of lumber or timber, board measure, for logs per car load. The word 'assigns' above used in connection with the party of the first part is hereby limited to his legal representatives in case of death, to his successors in the timber and lumber business in case of his retirement, and to any mill that he may build or purchase in case of his selling his interest therein. The provisions of this article (fourth) are to be embraced in contracts to be severally and formally entered into by each of said corporations with the party of the first part, and guarantied by the party of the second part." It was then averred in the complaint that on November 13, 1880, the defendant, under its corporate seal, executed the guaranty mentioned in the fourth article of the contract of February 27, 1880, above quoted. This guaranty executed with the Louisville & Nashville Railroad Company was set forth in the complaint. It was then averred: "That afterwards, to wit, on May 24, 1881, the said defendant and said partnership entered into a further explanatory contract in writing, in substance as follows: 'For the purpose of adjusting to transportation the rate of freight provided by the fourth article of the contract between D. F. Sullivan, of the city of Pensacola, Florida, and the Louisville & Nashville Railroad Company, the following rules are adopted by said parties: First. That the charge for transporting timber and lumber shall be one per cent. per ton per mile, to be charged at the actual weight, if weighed by track scales, but if not so weighed, each car load shall be assumed to weigh ten tons, but no more. Second. That the charge for transportation on logs shall be eight mills per ton per mile, to be charged at actual weight, if weighed, but, if not weighed, a car load may be assumed to weigh ten tons, but no more. Third. These rules are to be applied to all timber, lumber, and logs shipped since 20th April, 1881, as well as all future shipments. Fourth. This writing is not to be deemed a change or modification of the provisions of the fourth article of the said contract, but only as establishing rules for the execution thereof, founded upon a construction thereof to which the parties have agreed."' The complaint then continues as follows: "The plaintiff avers that at the time of entering into said contract, to wit, 27th of February, 1880, the said partnership owned and controlled various tracts and parcels of timbered land aggregating a large quantity, to wit, 250,000 acres, lying adjacent or contiguous to said three railroads, viz. the Pensacola Railroad, Selma & Gulf Railroad, and the Mobile & Montgomery Railway, and said partnership continued to control said lands, and was engaged in the business of procuring lumber and timber from logs cut on said land, and so continued to own and control said lands and conduct said business until the dissolution of said partnership by the death of said Daniel F. Sullivan on, to wit, June 11, 1884; and after the death of said Daniel F. Sullivan the plaintiff, as surviving partner of said partnership, continued to own and control said lands and to conduct said business as surviving partner. And plaintiff avers that prior to the dissolution of said partnership by the death of said Daniel F. Sullivan said defendant recognized the plaintiff as a member of said firm of Daniel F. Sullivan in the management and conduct of said business and in the execution of said contract, and that after the death of said Daniel F. Sullivan said defendant recognized the rights and authority of plaintiff as surviving partner of said partnership, and continued the execution of said contract with plaintiff as such surviving partner; and plaintiff avers that in and by said contract the said defendant undertook and agreed to transport timber, logs, and lumber delivered to it for transportation from any point on the said Pensacola Railroad, Selma & Gulf Railroad, and Mobile & Montgomery Railway to any point on any of them at the rate of one cent per ton per mile for timber and lumber, and eight mills per ton per mile for logs, estimating a car load, when not weighed, at ten tons, without any other charge for such transportation, or for receiving or delivering such timber, logs, and lumber so transported." The breaches complained of were then averred in the complaint, which were that the defendant had violated the several contracts as set forth in the complaint, in that it had made charges for the transportation of timber and lumber contrary to the stipulations of said contract; that it had charged switchage; that when the lumber or timber was to be hauled for a distance less than 20 miles the defendant had charged as for 20 miles; and in various other ways had breached the contract, each of the breaches complained of being specified by separate allegations. The defendant pleaded the general issue and a special plea, the substance of which is stated in the opinion. The contracts which are referred to in the complaint were proved and offered in evidence.

The following facts were shown upon the trial of the cause Martin H. Sullivan was not present at the signing or delivery of either of said agreements, and the evidence does not show that any one informed the defendant directly that D. F. Sullivan was a partnership, and there is testimony tending to show that Daniel F. Sullivan stated in reply to a question as to who was interested in the railroads purchased that no one but himself was interested. Part of the money consideration for the purchase of the railroads by defendant was paid in February, 1880, and the balance, $570,297.75, in New York City, November 11, 1880. Martin H. and D. F. Sullivan were both in New York at the time, but the evidence is silent as to whether Martin H. was present when the receipt was signed and the money paid. The receipt is signed "D. F. Sullivan," and is in full of all indebtedness "to me." The manner of dealing under the contract before the death of D. F. Sullivan was by written orders signed "D. F. Sullivan," and in one instance "M. H. Sullivan," and sent to the superintendent of the defendant, to deliver trains or cars, at a point designated, to be loaded with timber, logs, or lumber. These orders were obeyed, and the bills for the service rendered were made out at the contract rate to D. F. Sullivan, and paid. This continued until about March 1, 1883, when the defendant insisted upon an extra charge of 25 cents generally, but in some cases 50 cents, for shifting or switching cars, and insisted upon charging for a haul of 20 miles, whether the distance was that great or not. These extra charges were submitted to by D. F. Sullivan, and paid under protest each time, but the defendant continued to charge and collect these extra charges. This continued until the death of Daniel F. Sullivan on the 14th June, 1884. On the 20th June, 1884, the last will and testament of Daniel F. Sullivan, written by himself, was probated. By this will Daniel F. Sullivan spoke of all the property claimed by the partnership as his own, devising about one-half of it to Martin H. After the defendant commenced to demand said extra charges and to violate the contract in other respects, a suit in ejectment was commenced in the name of D. F. Sullivan against the defendant for the recovery of a part of the property conveyed to the defendant under the contract of February 27, 1880, upon the ground that, the defendant having violated its contract, the property reverted to the grantor. After the death of Daniel F., Martin H., as executor of said Daniel F., was made a party plaintiff to said suit, together with the other executor and the heirs of Daniel F. Sullivan. This suit was subsequently dismissed. The will of Daniel F. Sullivan was declared void November 6, 1890, and Martin H. Sullivan ceased to be executor. It was also in evidence that the charter of one of the steamboats was taken out in the name of D. F. Sullivan. On June 27, 1884,-just 14 days after the death of Daniel F. Sullivan,-...