The Chicago v. the Chicago
| Decision Date | 30 September 1875 |
| Citation | 79 Ill. 121,1875 WL 8581 |
| Parties | THE CHICAGO AND ALTON RAILROAD CO.v.THE CHICAGO, VERMILION AND WILMINGTON COAL CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county.
Mr. GEORGE W. SMITH, for the appellant.
Messrs. WALKER, DEXTER & SMITH, for the appellee.
This was assumpsit, in the Superior Court of Cook county, in which a recovery was sought on the following facts:
Prior to April 30, 1869, certain individuals had, through and by one Oliver Young, contractor, constructed a railroad, extending from Streator, the center of a coal region, on the Vermilion river, in LaSalle county, to Wenona, in Marshall county, situate on the Illinois Central railroad. On April 30, these parties sold this road to the St. Louis, Jacksonville and Chicago Railroad Company, for a valuable consideration agreed upon and paid. An instrument in writing, called a memorandum of this contract of sale, was executed by these parties, on the fourth clause of which this controversy arises. That clause is as follows:
“It is hereby mutually agreed between the parties, that all coal, at any and all times hereafter carried from the mines of the Vermilion Coal Company, at Streator, to the town of Wenona, for the use of that town and its vicinity, or for delivery to the Illinois Central Railroad Company for the use of that company, or for further transportation on its line of railroad, shall be carried over the railroad herein provided to be conveyed, at the price of three dollars for every car load of ten tons capacity, so carried: Provided, however, that this article shall not be in force unless the Vermilion Coal Company shall, at their own proper cost and expense, furnish and provide all the coal cars necessary and proper for their use, charging no mileage for the use of the same, and that said Vermilion Coal Company shall enter into a contract with said first party, binding itself to give to said first party, at all times hereafter, the transportation of all coal from their mines at Streator. destined to the town of Wenona, and to the Illinois Central Railroad Company, as aforesaid.”
The persons who built this road from Streator to Wenona, represented the Vermilion Coal Company, which association furnished the money to build it, and to whom was paid the consideration received from the St. Louis, Jacksonville and Chicago Railroad Company, on the sale thereof to them, and their officers executed this agreement. Up to March 16, 1870, the coal company operated this road, when, on that day, it was turned over to the railroad company above named, which company, on the same day, turned it over to the Chicago and Alton Railroad Company, appellants, since which time it has been operated by that company.
It is admitted that appellees are the same as the Vermilion Coal Company.
From this date, March 16, 1870, the Chicago and Alton Railroad Company, appellants herein, up to and until June 30, 1873, carried, from Streator to Wenona, the coal delivered to it by appellees, at the rate of three dollars per car, and there were more than three hundred cars so carried, appellees furnishing their own cars, the service of appellants consisting in hauling the cars over this road.
In the following months of July, August, September and October, 1873, appellees shipped by this road of appellants, two hundred and seventy-nine cars of coal, to be carried from Streator to Wenona, appellees paying therefor to appellants, for such transportation, nine dollars per car, they being appellees' own cars, which amounted to the sum of two thousand five hundred and eleven dollars, the excess over three dollars per car amounting to sixteen hundred and seventy-four dollars.
It is for this excess over three dollars per car, this action is brought, declaring upon the agreement, with the common counts, and the only question is, are appellees entitled to recover this amount, under this state of facts?
The issue was tried by the court without a jury, and there was a finding and judgment for the plaintiffs for this excess.
The defendants appeal, and insist the evidence does not establish a contract between these parties. They insist there was no contract in writing between them--that none can be implied from the acts of the parties.
It is not contended by appellees that any contract in writing was, at any time, actually executed between them and appellants in their own corporate names. The true question is, are these parties in such relation to the parties who actually made the contract, as to entitle appellees to an action upon it? In other words, can appellees claim to be such beneficiaries, under this contract, as to entitle them to an action for its breach?
The parties who made the agreement of April 30, 1869, were the individuals who composed the Vermilion Coal Company. By it, a sale of a railroad which they had constructed, twelve miles in length, for the purpose of conveying coal from Streator to Wenona, was agreed upon with a railroad corporation known as the St. Louis, Jacksonville and Chicago Railroad Company. The contract of sale was not fully completed until March 16, 1870, when the road was duly transferred to this railroad company, who, on the same day, turned it over to the appellant company.
It is admitted appellees are the same as the Vermilion Coal Company, and that the contract was made for the benefit of the latter company, seems evident, from the fact that, in the agreement for the sale, the side-tracks of the road sold were to remain the property of the Vermilion Coal Company. This company adopted and ratified the act of the parties making the sale, received the consideration paid therefor, and in all respects assumed to be parties to the contract.
The facts are sufficient to show that the individuals who made this contract with the Jacksonville railroad company were acting for the benefit of the Vermilion Coal Company, whether with authority or not is immaterial, as the coal company adopted their act and performed the stipulations of the contract so made. To this effect is the case of The Ohio and Mississippi Railroad Co. v. Middleton, 20 Ill. 629; Story on Agency, secs. 255, 259.
It is very clear a contract in writing was made which was adopted by appellees, by which the Jacksonville road was bound to carry the coal of appellees according to its terms.
But appellants claim, if this be so, no contract exists between appellees and appellants of like import, either by implication or otherwise.
It appears, on the day (March 16, 1870,) the road was turned over to the Jacksonville company, it was, on the same day, turned over to the appellant company. There is not, in the deed of transfer, any covenant that appellants shall perform all the obligations assumed by the Jacksonville company to the coal company, but, from the day of the transfer to July 1, 1873, more than three years, appellants did carry appellees' coal from Streator to Wenona, over this road, at three dollars per car, the coal company furnishing the cars. Up to this time it was not questioned appellants were bound to carry for three dollars a car, although their superintendent complained the contract was too low, yet that he felt bound to carry it out. Appellants placed their own construction upon this contract, and of their obligations under it, by carrying coal for three years. By doing this, they expressly assumed the contract of the Jacksonville company. If the price for transportation was low, that fact may have been one of the chief inducements of the coal company to sell to the Jacksonville company, but in fact to appellants, as the former company transported no coal. The transaction would seem to have been for the use and benefit of appellants.
It seems to us, appellants, when they came into possession of this road, and commenced to carry appellees' coal for three dollars per car, demanding no more, when the regular price was nine dollars per car, and so continued more than three years, put a construction upon their obligations, which they can not now avoid; they must be held estopped by their...
To continue reading
Request your trial
- Wiggins Ferry Company, And Respondent v. Chicago & Alton Railroad Company, And Respondent
-
American Cyanamid Co. v. Wilson & Toomer Fertilizer Co.
...need for entering equity to enforce the resulting obligation. Taenzer v. Chicago R. R. Co. (C. C. A.) 170 F. 240; Chicago & Alton R. R. Co. v. Chicago Coal Co., 79 Ill. 121; Swift & Co. v. Detroit Rock Salt Co. (C. C. A.) 233 F. 231. Estoppel by conduct to deny such an adoption has been app......
-
E. D. Clough & Co. v. Boston & M. R. R.
...Dwinal, 7 Greenl. (Me.) 134, 20 Am Dec. 352; Beckwith v. Frisbie, 32 Vt. 559; Mobile, etc., Ry. v. Steiner, 61 Ala. 559; Chicago, etc., R. R. v. Company, 79 Ill. 121; Louisville, etc., R. R. v. Wilson, 132 Ind. 517, 32 N. E. 311, 18 L. R. A. 105; Scottish, etc., Co. v. Herriott, 109 Iowa, 6......
-
Shelton v. Trigg
...our position is sustained by the great weight of authority. Mo., etc., Railroad Co. v. Pacheco, 185 S. W. 1051; Chicago, etc., Ry. Co. v. Chicago, etc., Coal Co., 79 Ill. 121; N. O., etc., Ry. Co. v. La. C. Co., 109 La. 13, 33 South. 51, 94 Am. St. Rep. 395; Leigh, etc., v. Brown, 100 Pa. 3......