Wiggins Ferry Co. v. Chicago & Alton R.R. Co.

Citation73 Mo. 389
PartiesTHE WIGGINS FERRY COMPANY, Appellant, v. THE CHICAGO & ALTON RAILROAD COMPANY.
Decision Date30 April 1881
CourtUnited States State Supreme Court of Missouri

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Appeal from St. Louis Court of Appeals.

REVERSED.

Glover & Shepley for appellant.

1. The contract sued on is not limited to Bloody Island. Bloody Island comprises but a part of the Illinois shore opposite St. Louis. The contract binds the railroad company to give plaintiff all its ferriage for the whole length of the Illinois shore opposite St. Louis. The contract is valid unless some cause of invalidity is shown, and the burthen of showing this is on the railroad company.

2. The contract is not ultra vires. The railroad company was authorized by its charter “to take, use and make arrangements for the transportation of freight and passengers carried, or to be carried, upon said railroad, or otherwise, from Alton to St. Louis, Missouri, and for this purpose to construct, own and use such boat or boats as may be necessary.” This statute extended the corporate franchise of the railroad company beyond its rail terminus on the Illinois shore to the city of St. Louis. That which a corporation has power to do, it is bound to do. Field Corp., §§ 500, 504; U. P. R. R. Co. v. Hall, 91 U. S. 343; King v. Severn, etc., R. R. Co., 2 B. & Ald. 646; Vincent v. R. R. Co., 49 Ill. 33; Mayor v. Marriott, 9 Md. 160. It was, therefore, bound to arrange for the transportation of its freights to St. Louis; and it was its duty to make some permanent and reliable arrangement. This it could not have done without agreeing to give all its ferriage to some one ferry company; for no company would go to the expense of equipping itself sufficiently to do the work without a guaranty of receiving the whole of it. If the power exists to enter into a contract, the terms of it are referred to the judgment and discretion of the corporation, and it is no more restrained than that of a natural person. Field Corp., § 246; Railroad v. Richmond, 19 Wall. 584; Western Bank v. Tallman, 17 Wis. 530; Argenti v. San Francisco, 16 Cal. 255; Blunt v. Walker, 11 Wis. 334; Richmond v. Dubuque, 26 Iowa 191; Aikin v. Blanchard, 32 Barb. 527; Connecticut v. Cleveland, 41 Barb. 9. When a contract made in excess of corporate powers has been executed, the plea of ultra vires will not be heard. Field Corp., §§ 263 to 266, inclusive. The conveyance to the railroad of $130,000 real estate is an answer to such a plea in this case.

3. The contract is not void for being contrary to public policy. This is an objection on which judges proceed with caution. Davis v. Bank, 2 Bing. 393; s. c., 9 Eng. Com. Law 452. There is nothing in the contract that requires the railroad company to abandon any of its charter rights as to operating its road, running trains, locating stations or contracting to deliver freights. The evidence shows not only that it was no disadvantage to the public to have freights and passengers delivered by plaintiff's ferry, but that that was the shortest, cheapest and most expeditious route. Arrangements could have been made to transfer loaded cars by plaintiff's ferry, and if defendant had lived up honestly to its contract it would have asked that such arrangements be made, and they would have been made.

4. The station for car transfer at Venice was not the suggestion of public policy and public good, but was a cunning contrivance of the railroad company to excuse its violation of the contract. The evidence abundantly shows this.

5. The railroad company, having a carrying franchise, which it is bound by its charter to exercise to and from St. Louis, cannot inject a connecting line between its termini in avoidance of any of its duties or liabilities. But if the case is one for the existence of a connecting line, the contract entered into with the Wiggins Ferry Company to transport its freights beyond its terminus as a connecting line is a valid contract, which it is bound to perform Railroads have power to contract for transportation beyond their termini and upon connecting lines. Wheeler v. San Francisco, 31 Cal. 46; Bank v. Augusta, 49 Me. 507; Shawmut Bank v. Plattsburg, etc., 31 Vt. 491; Morse v. Brainerd,41 Vt. 550; Hutchinson Carriers, 147, 148, 149, 150, 151. The power to carry beyond its lines entitles the railroad to make a valid contract for the purpose. Schroeder v. Hudson, 5 Duer 55.

6. The plaintiff was not bound to provide car transfer for defendant without request. The railroad company sets up a plea that the plaintiff did not provide car transfer, and this released it from the contract. Sometimes it puts an objection thus: The contract did not provide for car transfer, and, therefore, defendant had no right to it. Neither objection is good. If a contract is valid when made, a change in the conditions of business will not make it invalid. 19 Wall. 584; The Dubuque, etc., v. Richmond, etc., 16 Wall. 678. If this was not so, no contract would long be valid. If a discovery in art or science, invention of a motive power, a new application of a known power, or any improvement in methods of doing business would avoid a contract, no contract would long be valid. The world moves, but forms are not essentials. Public institutions, or quasi public institutions or instrumentalities, are specially bound to keep abreast with the progress of events, so far as to avail of all tried successful improvements adopted in use. Not only may they do it, but they may be compelled to it, and will be held guilty of negligence if they fail to do it. Steinweig v. Erie Ry. Co., 43 N. Y. 123; Levering v. U. T. Co., 42 Mo. 88; New Jersey, etc., v. Merchants' Bank, 6 How. 344; Empire T. Co. v. Wamsutta, etc., 63 Pa. St. 14; Hutchinson on Carriers, § 529; Meier v. R. R. Co., 64 Pa, St. 225; Hegeman v. R. R. Co, 16 Barb. 353: St. Louis. etc., v. Gilham, 39 Ill. 455. Notwithstanding, it is evident that in the initial period of introducing an improvement, a carrier has no right to immediately force it upon the public. When the case is one of contract, as that now under consideration, the concurrence of both parties is needful; and if one of them refuses to concur, denies the right and power of the other party to make the improvement for him, and will not have it made for him, he will not be allowed to complain it was not made for him. Nor should he in such case claim a release from his contract, according to old methods.

7. The contract is not void, as being in restraint of trade. There is no element of a restraint of trade in it. It was the duty of defendant to carry their passengers and freights to and from St. Louis. It was bound to make some arrangement to that end. We do not see that any wiser or better one could have been made. We have no evidence that any other could have been made. To agree to deal with one person was never held to be a restraint of another's trade. Jones v. Edney, 3 Camp. 285; Morris v. Colman, 18 Ves. 437. The restraint, to make a contract void, must be a general prevention of ome one's trade, not limited in space. Pierce v. Fuller, 8 Mass. 223; Hayward v. Young, 2 Chitty 407; Davis v. Mason, 5 T. R. 118; Hitchcock v. Coker, 6 Ad. & Ellis 455; Bunn v. Guy, 4 East 190; Perkins v. Lyman, 9 Mass. 522; Rannie v. Irvine, 7 Man. & Gr. 969; Dunlop v. Gregory, 10 N. Y. 241. Palmer v. Stebbins, 3 Pick. 188; Warren v. Jones, 51 Me. 146; Alger v. Thacher, 19 Pick. 51; Bowser v. Bliss, 7 Blackf. 344; Bradley v. Denton, 3 Wis. 557; Costigan v. Mohawk, 2 Denio 610; Shannon v. Comstock, 21 Wend. 457; Dean v. Ritter, 18 Mo. 182; Bailey v. Damon, 3 Gray 92; Leeman v. Lloyd, 14 L. J. (N. S.) 165; Presbury v. Fisher, 18 Mo. 50; Richmond v. Dubuque, 33 Iowa 422; s. c., 26 Iowa 191.

8. The Chicago & Alton Railroad Company is bound by the contract of 1864, as fully as the Alton & St. Louis Railroad Company was bound by it. Burton v. Wells, 30 Miss. 689; Attix v. Pelan, 5 Clarke (Iowa) 336; Goodwin v. Gilbert, 9 Mass. 510; Guild v. Leonard, 18 Pick. 511; Pike v. Brown, 7 Cush. 133; Aikin v. R. R. Co., 26 Barb. 289; Stow v. Wyse, 7 Conn. 214; Davis v. Calloway, 30 Ind. 112; Felton v. Dickinson, 10 Mass. 287.

9. The plaintiff was entitled as damages to the full ferriage rates of all freights to which plaintiff was entitled under the contract, and which plaintiff was not employed to ferry. Greene v. Waggoner, 2 Hilton 297. The plaintiff was employed to work for a specified period, and being dismissed without fault, before the end of the time, was entitled to recover the full contract price, defendant failing to show the plaintiff could have got other employment. King v. Steiren, 44 Pa. St. 99; Pond v. Wyman, 15 Mo. 175; Nearns v. Harbert, 25 Mo. 352; Little v. Mercer, 9 Mo. 218; Ward v. Ames, 9 John. 138; McDaniel v. Parks, 19 Ark. 671; Armfield v. Nash, 31 Miss. 361; Costigan v. Mohawk, 2 Denio 610; Ashburner v. Balchen, 7 N. Y. 262; Webb v. Coonce, 11 Mo. 9. One who agrees to furnish cargo, and fails, must pay damages. Puller v. Staniforth, 11 East 232; Dubuque v. Richmond, 26 Iowa 191; Medbery v. Sweet, 3 Chand. (Wis.) 231. In such a case as this there is no mitigation of damages for what plaintiff could have made. The plaintiff's boats are not general boats--are confined to a ferry business. They cannot go abroad in search of other freights. They can only run from shore to shore--run empty if freights are not offered. Every expense of time, labor and money was incurred to carry the defendant's freights, and plaintiff was entitled to full ferry rates.

James O. Broadhead for respondent.

1. To what did the contract extend? ( a) Plaintiff did not agree to transfer any cars over the river. No such thing had ever been done; nor was there any provision for its being done. On the contrary, plaintiff, by the contract, reserved a space 260 feet wide between defendant's depot grounds and the river for a wharf; and over this defendant could not lay a track, so that its cars could not reach plaintiff's boats. ( b) The...

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