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

• Decision Date: 09 July 1894
• Citation: 27 S.W. 568
• Court: Missouri Supreme Court
• Parties: WIGGINS FERRY CO. v. CHICAGO & A. R. CO.<SMALL><SUP>1</SUP></SMALL>

27 S.W. 568

WIGGINS FERRY CO. v. CHICAGO & A. R. CO.¹

Supreme Court of Missouri, Division No. 1.

July 9, 1894.

CONTRACT BETWEEN FERRY COMPANY AND RAILROAD COMPANY — INTERPRETATION — VALIDITY — BREACH — WHAT CONSTITUTES — DAMAGES — WHEN EXCESSIVE — INTEREST.

1. A contract between the Wiggins Ferry Company, which owned a tract of land on the Mississippi river, opposite St. Louis, including Bloody Island, and a railroad company operating a road to such island, declared the ferry company's object to be to secure the railroad company's ferrying business, and the railroad company's object to be to secure depot grounds, etc., which were therein granted to it by the ferry company; and provided that the railroad company would always employ said ferry company to transport across such river all persons and property taken across to or from the railroad, and that "no other than the Wiggins ferry" should ever be employed by the railroad company to cross any passengers or freight coming or going on such road. Held, that such contract did not prevent the railroad company from crossing its freight and passengers by means of a wagon and railroad bridge afterwards constructed, but simply prohibited them from employing any other ferry to transport them.

2. If the contract prevented the use of the bridge by the railroad company for the transportation of its freight and passengers, it would be contrary to public policy and void.

3. But where the railroad company, by persistent effort, diverted all its car-transfer business to another ferry, by failure to make any connection with the Wiggins ferry, so that shippers had no choice of routes across the river, the railroad company became liable to the Wiggins Ferry Company for its loss of profits on such business.

4. The railroad company is not liable to the Wiggins Ferry Company for loss of profits on cars delivered by it, for other railway companies, to another ferry, for transportation across the river under contracts between them and the ferry company, and with which contracts it had nothing to do.

5. Nor is such railroad company liable on account of cars delivered by it to another railroad company at Bloody Island, by which they were taken down the river eight miles, beyond the limits of St. Louis, where they were ferried across the river and delivered to connecting carriers, such cars being delivered to such other road by directions of the consignor or consignee.

6. A contract was made by the ferry companies and the bridge company that the business of transferring freight in cars over the river should "be conducted as a joint interest, and the joint gross earnings derived therefrom shall be pooled and divided between the parties" in proportions specified. It also provided for a pool auditor, to receive reports and make statements; that rates should be charged by each company according to a schedule to be agreed on from time to time; and that neither party should interfere with the business of the other. It was not made to increase ferry rates, but to preserve reasonable rates. Held, that such contract did not make the parties to it partners, and that its existence constituted no defense to an action by the Wiggins Ferry Company against the railroad company for loss of profits caused by the diversion of its transfer business to such other ferry company.

7. Where, in such action, the measure of damages applied was that approved on the appeal in a former suit between the same parties, and the finding of facts as to loss of profits is supported by the evidence, an objection that the damages allowed are excessive cannot be sustained.

8. In an action for damages, plaintiff is not entitled to interest on the damages sustained, where the measure of damages is loss of profits.

Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Action by the Wiggins Ferry Company against the Chicago & Alton Railroad Company for breach of contract. From a judgment in favor of plaintiff for part of the amount claimed, both parties appeal. Reversed.

Geo. A. Madill and Thos. E. Ralston, for plaintiff. Warwick Hough, W. M. Hough Given Campbell, R. H. Kern, and Wm. Brown, for defendant.

BLACK, C. J.

The plaintiff, the Wiggins Ferry Company, is a corporation created under the laws of the state of Illinois, and the defendant is a railroad corporation organized under the laws of the same state. The ferry company owned a tract of land in that state, opposite the city of St. Louis, having a front of 2½ miles on the Mississippi river, including in such front Bloody Island. It has, and during all the time in question had, the exclusive right to operate a steam ferry from any point or points on its river front to the city of St. Louis. The defendant has the charter power to own and operate a railroad from Chicago to Bloody Island, with power to transport passengers and freight "to St. Louis, Missouri, and for that purpose to construct, own, and use such boat or boats as may be necessary." On the 28th April, 1864, the Alton & St. Louis Railroad Company, another Illinois corporation, and the ferry company, entered into a written contract. On the same day the Alton & St. Louis Railroad Company assigned this contract to the defendant, the Chicago & Alton Railroad Company. The last-named company, by the assignment and operation of law, became bound to perform all the covenants of its assignor, so that we may treat it as the party of the second part to the contract. Wiggins Ferry Co. v. Chicago & A. R. Co., 73 Mo. 389. The plaintiff commenced two suits — one on the 13th August, 1875, and the other on the 19th September, 1881 — to recover damages for breaches of the contract, the breaches covering a period of time from the 8th June, 1872, to the 19th September, 1881. Thereafter the suits were consolidated, and the cause sent to a referee. The referee found for the plaintiff, and made report to the court that the plaintiff should recover damages as follows:

                Cars crossed by Madison ferry, 43,055
                  at $3.50 per car .........................  $150,692 50
                Cars crossed by bridge, 42,817 at
                  $3.50 per car ............................   149,859 50
                Passengers in cars and omnibuses
                  1,020,536, at 5c. each ...................    51,026 80
                Baggage wagons and omnibuses ...............     3,578 60
                Money rental ...............................    23,125 00
                                                              ___________
                   Total ...................................  $378,282 40
                

Both parties filed exceptions to the report, all of which were overruled, and the court gave judgment according to the report, from which both parties appealed. To the better understanding of the contract, it may be stated here that at the date thereof Bloody Island was connected with the main shore, and a small village thereon called Illinoistown, by a single dike. The island was at that time the terminal point of two or three railroads only, and the city of St. Louis was the real terminal point for all freight contracts, rates being made to St. Louis, including therein transfer charges. The ferry was then the only means provided for crossing the river. There was then another duly-incorporated ferry company, known as the Madison County Ferry Company, which operated a ferry from Venice down the river to St. Louis. Venice is some 2½ or 3 miles north of Bloody Island. The contract to which the defendant became the party of the second part and the Wiggins Ferry Company the party of the first part, and upon which this suit is founded, provides, among other things: "That whereas, the said parties are both anxious to secure permanently to themselves, respectively, and to their assigns, the objects hereinafter mentioned, — that is to say, the party of the first part the ferrying business, between the Illinois and the Missouri shore, opposite to the city of St. Louis, of all the freights and passengers carried or to be carried by the above party of the second part, and also the further sum of twenty-five hundred dollars per annum, to be paid by the said party of the second part to the said party of the first part, as hereinafter specified; and the said party of the second part the securing of proper facilities for depot grounds for the operation and doing of business of their road at its western terminus, on the Mississippi river, opposite to the city of St. Louis, — now, for the purpose of carrying out the above-mentioned objects, the said parties have agreed and covenanted as follows, that is to say: The said ferry company, party of the first part, in consideration of the covenants and stipulations of the said railroad company, party of the second part, herein contained, to be observed and fulfilled by the said party of the second part, does give, grant, and convey to the railroad company the right to use, for tracks, warehouses, and other railroad buildings, a parcel of ground on Bloody Island, having a front of 400 feet and a depth of 1,500 feet [which tract is duly described]. In consideration of said covenants, the said party of the first part further agrees to furnish and maintain good and convenient wharfboats and steam ferryboats, to do with promptness and dispatch all the ferrying required for the transit of passengers and freight, coming from or going to said railroad, over the river, navigation permitting, except that the said ferry company may abandon the business at any time by giving the railroad company six months' notice of their determination to do so, in which event the right of the said party of the second part herein to the possession of the parcel of ground above specified shall remain unaffected, excepting as to the payment of the said twenty-five hundred dollars, which are to be paid in any event. * * * In consideration of the lease aforesaid, and the covenants entered into on the part of the said ferry company, the said railroad company covenants and agrees that they will always employ the said ferry company to transport...