Terre Haute & I.R. Co. v. Peoria & P.U. Ry. Co.

• Decision Date: 19 October 1899
• Citation: 55 N.E. 377,182 Ill. 501
• Court: Illinois Supreme Court
• Parties: TERRE HAUTE & I. R. CO. v. PEORIA & P. U. RY. CO.

182 Ill. 501

55 N.E. 377

TERRE HAUTE & I. R. CO.

v.PEORIA & P. U. RY. CO.¹

Supreme Court of Illinois.

Oct. 19, 1899.

Appeal from appellate court, Second district.

Action by the Peoria & Pekin Union Railway Company against the Terre Haute & Indianapolis Railroad Company on an appeal bond. There was a judgment for plaintiff, which was affirmed on appeal to the appellate court (81 Ill. App. 435), and defendant appeals. Affirmed.John G. Williams (Page, Wead & Ross and T. J. Golden, of counsel), for appellant.

Stevens, Horton & Abbott, for appellee.

BOGGS, J.

The circuit court of Peoria county entered a decree dissolving an injunction, granted at the instance of the appellant company, restraining the appellee company from excluding the appellant company from the use of certain tracks, switches, and terminal facilities at the city of Peoria. The appellant company, in compliance with an order granting an appeal from such decree to the appellate court for the Second district, and continuing the injunction in force pending such appeal, together with the other appellants, as sureties, executed a bond conditioned as follows: ‘Now, if said Terre Haute and Indianapolis Railroad Company shall duly prosecute said appeal, and shall, moreover, pay all costs rendered and to be rendered against it, and shall pay to said Peoria and Pekin Union Railway Company all damages sustained by it by the continuance in force of said injunction, and shall also pay to said Peoria and Pekin Union Railway Company the sum of $1,875 per month for each month from October 1, 1892, to the date of the filing in said circuit court of the decree dissolving said injunction, and for each and every month from said last-named date during the pendency of said appeal, less such credits as said Terre Haute and Indianapolis Railroad Company may be entitled to by reason of payments made on said sum (the said sum of $1,875 per month referred to being the rental demanded by plaintiff as a fixed charge, as in defendant's answer stated), in case said decree appealed from shall be affirmed in said appellate court, then the above obligation to be null and void; otherwise, to remain in full force and virtue.’ The decree was affirmed by the appellate court (61 Ill. App. 405), and the judgment of affirmance was, on a further appeal by the appellant company, affirmed by this court (Terre Haute & I. R. Co. v. Peoria & P. U. Ry. Co., 167 Ill. 296, 47 N. E. 513). The facts recited in the opinion rendered in the case by this court, and in the statement of the case preceding the opinion, are the same as are disclosed in this record, and need not be reiterated here. This is an appeal from the judgment of the appellate court for the Second district affirming the judgment entered by the circuit court of Peoria county against appellants in favor of appellee company in an action in debt brought to recover on the said appeal bond. The rulings of the trial court that pleas numbered 3, 6, and 7 were obnoxious to demurrer, and in refusing instructions numbered 1, 7, 8, and 9 asked by appellants, are assigned as for error.

Plea No. 3 was general plea of non damnificatus. Such a plea is good only when the condition of the covenant is, in general terms, to indemnify and save harmless. When, as here, the covenant is for the payment of specified sums of money, such a plea is not good as against a declaration which assigns as for a breach of the covenant the failure to pay the specified sums of money. 3 Enc. Pl. & Prac. 663. And the rule is the though it appear the covenant was given by way of indemnity only. Holmes v. Rhodes, 1 Bos. & P. 638.

The sixth and seventh pleas do not materially differ. The allegations of each, in substance, are: The appellant company, prior to the institution of the suit in the circuit court for the injunction, had succeeded to the rights of one Genis under the contract between said Genis, as receiver of the Illinois Midland Railroad Company, and the appellee company, whereby the said Genis, and the said appellant company, as successor to the rights of said Genis, became entitled to the use of said tracks, switches, and terminal facilities upon the payment of an annual rental in the sum of $13,000, being $1,083.33 per month, instead of the sum of $1,875 per month, specified to be paid for such use by the conditions of the said bond; that said appellant company has paid to the appellee company an amount equal to $1,083.33 per month for the period specified in the bond; that the bond which the circuit court was authorized to require in order that the appellant company might perfect an appeal from the decree dissolving the injunction to the appellate court, and to continue such injunction in force pending such appeal, was a bond of indemnity only, and that the said circuit court was without legal warrant or authority to require such bond to be conditioned for the payment of the said sum of $1,875 per month. The seventh plea set forth with more particularity the averments of the bill filed by appellant company for the injunction, and that such averments, in substance, were: The appellee company was a corporation formed for the purpose of establishing and maintaining a union station for passenger and freight depots, under the act of the general assembly approved April 7, 1875, entitled ‘An act authorizing the formation of union depots and stations,’ etc. (3 Starr & C. Ann. St. 1896, p. 3251); and averred that the demand of the appellee compnay that the appellant company should pay the sum of $1,875 per month as rental for the tracks and terminal facilities was unreasonable and unjust, and a discrimination against the appellant company, and as such was in violation of section 6 of the said act. It appeared from the the plea that the bill alleged no claim of right in the appellant company under the Genis contract, but relied wholly upon the position that the...