Wiggins Ferry Company, And Respondent v. Chicago & Alton Railroad Company, And Respondent

• Citation: 27 S.W. 568,128 Mo. 224
• Parties: Wiggins Ferry Company, Appellant and Respondent, v. Chicago & Alton Railroad Company, Appellant and Respondent
• Decision Date: 30 April 1895
• Court: United States State Supreme Court of Missouri

27 S.W. 568

128 Mo. 224

Wiggins Ferry Company, Appellant and Respondent, v. Chicago & Alton Railroad Company, Appellant and Respondent

Supreme Court of Missouri, First Division

April 30, 1895

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed in part and reversed in part.

Given Campbell, R. H. Kern and William Brown for Chicago & Alton Railroad Company, appellant and respondent.

(1) Cars crossed by bridge during ice blockades are excepted by the contract and not chargeable against defendant. (2) Wabash cars crossed by the Madison County Ferry Company when the St Charles bridge was down were crossed by procurement of the Wabash Railroad Company and delivered to defendant at Venice by the consent of plaintiff and should not be charged against defendant. (3) Cars sent across by the Missouri Pacific Railroad and other western roads, were delivered to defendant by the bridge company at Bridge Junction, and are not properly chargeable against defendant. (4) Cars which never came in over or went out upon lines of the Chicago & Alton Railroad Company, but which were delivered to it at East St Louis to be switched, should not have been charged against defendant. (5) Cars billed to East St. Louis by the desire of the consignees, and afterward crossed upon the bridge by their directions, should not be charged against defendant. (6) Cars sent by shippers over the bridge from St. Louis to East St. Louis, should not be charged against defendant. (7) The true construction of the contract and the obligations of the railroad company to the ferry company thereunder. Wiggins Ferry Co. v. Railroad, 72 Ill. 360. (8) The contract of April 28, 1864, is contrary to the public policy of the state of Illinois. First. The lex loci contractus governs. Story's Conflict of Laws, sec. 242; 2 Kent's Com. p. 457; 2 Parsons on Contracts, p. 570; Railroad v Boyd, 91 Ill. 268; Penn. Co. v. Fairchild, 69 Ill. 261; Railroad v. Smith, 74 Ill. 179; Evans v. Anderson, 78 Ill. 558; Railroad v. Barron, 83 Ill. 365; Fortier v. Penn. Co., 18 Brad. 260. Second. Public policy. Contractual Limitations, pp. 197, 198; Constitution of Ill. 1870, art. 11, sec. 12; 2 Stat. of Ill. [St. & C. Ed.], pp. 1921, 1952, 1954, 1955; 1 Stat. of Ill. [St. & C. Ed.], p. 563; Railroad v. People, 56 Ill. 369; Railroad v. Vincent, 49 Ill. 33; Pcople ex rel. v. Railroad, 55 Ill. 95; Railroad v. Smith, 62 Ill. 276; Railroad v. People, 67 Ill. 19; Hoyt v. Railroad, 93 Ill. 609; Co. v. Hill, 14 Ill.App. 582; Railroad v. People, 120 Ill. 206; Railroad v. Suffern, 27 Ill.App. 409; Railroad v. Suffern, 129 Ill. 274; Co. v. Co., 68 Ill. 489. Third. Directions of owners should be obeyed. Claflin v. Railroad, 7 Allen, 341; Vincent v. Railroad, 49 Ill. 33; Viner v. Co., 50 N.Y. 23; Devereux v. Barkley, 2 B. & Ald. 704; Wright v. Railroad, 8 Hill (Penn.) 19; Ela v. Express Co., 29 Wis. 611; Baldwin v. Express Co., 23 Ill. 197; Wood's R'y Law, p. 1594, secs. 432, 441, 445, 446; Scothorn v. Railroad, 8 Exch. 341; 2 Rorer on Railroads, p. 1224. Fourth. Ultra Vires. Green's Brice's Ultra Vires, pp. 32, 120, 371; Charles River Bridge v. Warren, 11 Peters, 544; Railroad v. Ryan, 11 Kan. 602; Railway v. Seely, 45 Mo. 512; State v. Railroad, 83 Mo. 144; Fuller v. Dame, 18 Pick. 472; Penn. Co. v. Railroad, 118 U.S. 290; Board v. Railroad, 50 Ind. 85; Railroad v. Casey, 26 Pa. St. 307; Gibbs v. Gas Co., 130 U.S. 397; Iron Co. v. Extension Co., 129 U.S. 643. (9) It was the legal right and duty of the railroad company to make use of the bridge as a means of crossing the river. Ferry v. Wist, 70 Mo. 657; Bridge Co. v. Lonergan, 91 Ill. 513; People v. Railroad, 35 Cal. 619; Taylor's Executors v. Conway, 1 Black, 603; Wild v. Chapman, 2 Iowa, 526; Challis v. Davis, 56 Mo. 25. (10) The continued occupation of the land mentioned in the contract, should not be considered in determining the validity of the contract or the liability of defendant in a suit thereon. Thomas v. Railroad, 101 U.S. 71; Broom's Legal Maxims "in pari delicto;" Railroad v. Mather, 104 Ill. 257; Morawetz on Priv. Corp. sec. 714, et seq; Marsh v. Railroad, 64 Ill. 414; Railway v. Bridge, 131 U.S. 371; Parkersburg v. Brown, 106 U.S. 487; Chapman v. County, 107 U.S. 346; Penn. Co. v. Railroad, 118 U.S. 370. (11) The court below erred in awarding damages against appellant for and on account of cars crossed either way upon the bridge, or by the Madison County Ferry Company during the existence of the pool contracts between the Wiggins Ferry Company, the bridge and the Madison County Ferry Company. Parsons on Partnership [2 Ed.], ch. 2, p. 6; 2 Parsons on Contracts, p. 614; 1 Parsons on Contracts, p. 148, sec. 2; 3 Addison on Contracts, sec. 1293; Collyer on Partners, section 641; Jaccard v. French, 12 East, 317; Bostwick v. Champion, 11 Wend. 571; S. C., 18 Wend. 175; Waugh v. Carver, 2 H. Blackstone, 235. (12) The circuit court erred in awarding excessive damages against appellant for supposed breaches of the contract; the true measure of damages being the loss of profits. Practical Political Economy, by Prof. Bonamy Price; 1 Smith's Wealth of Nations, p. 50; 1 John Stewart Mill, Political Economy, p. 483; United States v. Speed, 8 Wall, 84; Masterson v. Brooklyn, 7 Hill, 61; Shannan v. Comstock, 21 Wend. 457; Hecksher v. McCrea, 24 Wend. 304; Burrell v. Saginaw Salt Co., 14 Mich. 39; United States v. Behan, 110 U.S. 338; Nears v. Harbent, 25 Mo. 354. (13) The court below erred in awarding damages against appellant on account of cars crossed from Venice by way of the Madison County Ferry, the town of Venice being three miles north from East St. Louis, on defendant's road. Mills v. St. Clair, Co., 7 Ill. 97; Mills v. St. Clair Co., 8 How. 569; Gales v. Anderson, 13 Ill. 424; Bridge v. Lonergan, 91 Ill. 513. (14) The court below erred in awarding damages against appellant on account of cars billed to East St. Louis, and from thence crossed by orders of consignees or owners, and on account of freights and passengers delivered to it at East St. Louis. Railroad v. Wiggins Ferry Co., 73 Mo. 389. (15) The court below erred in that it failed to give full faith and credit to the constitution, public acts, laws and decisions of the state of Illinois in its decisions as to the construction and validity of the contract in evidence; in overruling appellant's exceptions to the referee's report and in rendering judgment against appellant. (16) The court below erred in overruling appellant's motion for a new trial. Wiggins Ferry Co. v. Railroad, 72 Ill. 517. (17) The questions involved herein and raised by appellant in defense to these actions are not res adjudicata as against appellant. Bigelow on Estoppel, 37; Freeman on Judgments, sec. 588; 1 Greenleaf, secs. 528, 529, 530; Hickerson v. Mexico, 58 Mo. 62; Sperlock v. Railroad, 76 Mo. 67; Lawrence v. Hunt, 10 Wend. 80. (18) The defendant is not liable to plaintiff for any cars delivered by defendant to the East St. Louis and Carondelet Railroad, and crossed over the river at Carondelet. Sedgwick on Construction [2 Ed.], Pomeroy's notes, p. 291; Gates v. Anderson, 13 Ill. 413; Mills v. St. Clair Co., 8 How. 584; Perrin v. Canal Co., 9 How. 172; Charles River Bridge v. Warren, 11 Peters, 420; 2 Kent's Com. 338, 340; Railroad v. Railroad, 10 La. Ann. 742; Gas Co. v. Light Co., 115 U.S. 656. (19) There was no error in the refusal of the circuit court to allow interest to plaintiff upon the award of the referee. Railroad v. Wiggins Ferry Co., 73 Mo. 389; Dozier v. German, 30 Mo. 221; De Steiger v. Railroad, 76 Mo. 68; Sedgwick on Damages, 375. (20) The circuit court of the city of St. Louis erred in overruling the several exceptions to the report of the referee.

Warwick Hough and Warwick M. Hough, also, for Chicago & Alton Railroad Company.

(1) It was no breach of the contract sued on, for the defendant even where it had contracted to deliver passengers and freight in the city of St. Louis, to cause such passengers and freight to be transported in cars over the bridge of the Illinois & St. Louis Bridge Company across the Mississippi river, instead of sending the same across said river by way of the plaintiff's ferry. Wiggins Ferry Co. v. Railroad, 73 Mo. 389. (2) The contract sued on only obligates the defendant not to employ any other ferry than the plaintiff's ferry, in crossing freight and passengers over the Mississippi river, and it does not obligate the defendant never to use or employ any bridge that might thereafter be erected over the said river, for the purpose of crossing freight and passengers over the said river. Wiggins Ferry Co. v. Railroad, 73 Mo. 389. (3) If a contract is fairly susceptible of two constructions, one of which will make it wholly or partly void as being in contravention of public policy, and the other not, that construction will be adopted by the courts which will not so make it void as being in conflict with public policy. Lawson on Contracts [Ed. 1893], p. 389, and note 5; Hobbs v. McLean, 117 U.S. 567, loc. cit. 576; U.S. v. Railroad, 118 U.S. 235. (4) If the court should construe the contract sued on as prohibiting the defendant from using the bridge across the Mississippi river, and as requiring it to use plaintiff's ferry in preference thereto, although such bridge affords the safest, most expeditious, economical and convenient method of crossing said river with freight and passengers, then such construction of the contract makes it void to that extent as being in violation of defendant's duty to the public, and in disregard of the rights of the public, and, therefore, in contravention of public policy. Wiggins Ferry Company v. Railroad, 73 Mo. 389. (5) The referee and the circuit court both erred in holding that, because the defendant is still in possession of the...