Thatcher v. West C. S. R. Co.

• Decision Date: 28 February 1908
• Docket Number: 152-1907
• Citation: 35 Pa.Super. 615
• Parties: Thatcher, Appellant, v. West Chester Street Railway Company
• Court: Pennsylvania Superior Court

35 Pa.Super. 615

Thatcher, Appellant, v. West Chester Street Railway Company

No. 152-1907

Superior Court of Pennsylvania

February 28, 1908

Argued November 21, 1907

Appeal by plaintiff, from order of C.P. Chester Co.-1906, No. 10 entering judgment for defendant non obstante veredicto in case of William P. Thatcher v. West Chester Street Railway Company.

Assumpsit for breach of a contract. Before Butler, J.

The facts are stated in the opinion of the Superior Court.

The court gave binding instructions for plaintiff.

Verdict and judgment for plaintiff for $ 81.94. Plaintiff appealed.

Error assigned was in entering judgment for defendant non obstante veredicto.

Reversed.

George B. Johnson, for appellant. -- A well-settled principle of construction is that where the language of the promise may be understood in more senses than one, it is to be interpreted in the sense in which the promisor had reason to suppose it was understood by the promisee: Mowatt v Londesborough, 3 El. & Bl. 307; Wells v. Carpenter, 65 Ill. 447; Street v. Chicago Wharfing, etc., Co., 157 Ill. 605 (41 N.E. 1108); Thoubboron v. Lewis, 43 Mich. 635 (5 N.W. 1082); Farley v. Pettes, 5 Mo.App. 262; Potter v. Ontario, etc., Mut. Ins. Co., 5 Hill, 147; White v. Hoyt, 73 N.Y. 505; Barlow v. Scott, 24 N.Y. 40; Hoffman v. AEtna Fire Ins. Co., 32 N.Y. 405; Chamberlain v. Painesville, etc., Ry. Co., 15 Ohio St. 225; Williamson v. McClure, 37 Pa. 402; Gunnison v. Bancroft, 11 Vt. 490; Johnson v. N.W. Nat. Ins. Co., 39 Wis. 87; Bickford v. Cooper & Co., 41 Pa. 142; Coleman v. Grubb, 23 Pa. 393; Ringrose v. Ringrose, 170 Pa. 593; People's Nat. Gas Co. v. Wire Co., 155 Pa. 22; Matchette v. Colburn, 166 Pa. 265.

R. T. Cornwell, with him J. Frank E. Hause, for appellee.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

ORLADY, J.

The plaintiff is the owner of a farm in Chester county on which he has lived for over forty years, and through which the defendant railway company built an extension of its original railway so as to traverse his farm for a distance of about one mile, the grant being to the defendant, and " its successors and assigns the right, liberty and privilege of constructing, operating and maintaining a railway through and over said tract of land" upon a location designated in the agreement; which privilege was granted solely upon the conditions specified in a writing signed by the plaintiff, which contained a number of stipulations in regard to the construction and operation of the road, but the one involved in this controversy relates exclusively to the consideration for the contract, as follows: " That the said William P. Thatcher shall be furnished with four annual tickets, upon the payment by him of one cent yearly; which tickets shall entitle them to ride in the cars operated over the proposed electric railway owned and operated, or may be owned and operated by the party of the second part so long as the title to the property shall remain in the party of the first part, the said William P. Thatcher to designate on or before the first of each year to whom the remaining three annual tickets shall be issued for that year." The plaintiff contends that the contract means that he should have four annual tickets, issued to parties designated by him, over the whole of the defendant's system of electric railway as it was in operation and contemplation at the date of the contract signed by him. The defendant claims that these four tickets should be limited to the branch or extension of the railway between Lenape and Kennett Square, as this was the " proposed electric railway" which passed through the plaintiff's premises. The latter view was taken by the court, and the verdict, which had been rendered in the plaintiff's favor, was set aside and judgment entered in favor of the defendant.

As an aid to the construction of the contract, we must consider the situation of the contracting parties. The West Chester Street Railway Company was chartered in 1890, and in 1893 had completed its street railway in the borough of West Chester, and also an extension about four miles in length from West Chester to Lenape. Ten years after the completion of this branch, the company proceeded to secure rights of way for the construction of an extension of its railway from Lenape to Kennett Square, and other extensions to Coatesville, Downingtown, etc. The plaintiff's land being in its line of survey, necessitated a contract with him for a right to pass over his land and occupy it. The distance from Kennett Square to Lenape was about six miles, from Lenape to West Chester three and one-half miles, and from West Chester to Downingtown about nine miles. The plaintiff and his family had frequent occasion to travel to and from West Chester, where some members of the family attended school, and where their general family business was transacted. Representatives of the company had a number of interviews on the premises with the plaintiff at which time, as shown by the testimony, the location of the road was determined, the system of the railroads then constructed, and to be constructed was explained to the plaintiff by the description given in the mortgage on record on the defendant's property, which was admitted in evidence, in connection with the plaintiff's testimony, in order to shed light on whatever information he had as to the roads the company contemplated building, which mortgage recited by special description, the railways in the borough of West Chester; the extension to Lenape; the extension from Lenape, to Kennett Square and Unionville; the extension to Downingtown, and also to Coatesville and Parksburg. It is conceded that the free transportation for four members of his family over the...