Under an indenture in the nature of a lease which includes
railway sleeping cars and written contracts for letting them to
certain railroad companies, and which provides that if the revenue
derived from such contracts shall, by reason of the refusal of any
of the railroad companies to permit the cars to be run over their
lines of road, fall below the sum agreed in the indenture to be
paid quarterly by way of annual rent, the lessee "shall have the
right either to declare this contract null and void and surrender"
to the lessor the property leased
"or shall and will pay in like manner, in lieu of said sum, such
sum or share of the net revenue from the remaining lines of the
roads as the parties hereto may at that time agree upon,"
the lessee, if he makes no election, in case of the revenue, by
reason of such refusal of the railroad companies, falling below the
sum first mentioned, is no longer liable for that sum, but only for
such share of the net revenue from remaining railroads as the
parties may at that time agree upon, and if they do not agree, for
a sum to be assessed by the jury in the nature of a
quantum
meruit, not exceeding the whole of such net revenue.
The case is stated in the opinion.
MR. JUSTICE GRAY delivered the opinion of the Court.
This was an action of covenant, brought July 30, 1885, by the
Central Transportation Company against Pullman's Palace Car Company
to recover the rent or sum of $132,000, due for the first two
quarters of the year 1885, under the indenture of lease of February
17, 1870, counted on in the other case between the same parties,
argued at the same time, and just decided,
Page 139 U. S. 63
ante, 139 U. S. 24. The
plaintiff obtained a verdict and judgment for the sum claimed and
interest, and the defendant sued out this writ of error.
In the present action, which was tried before the other was
brought, the objection that the contract sued on was
ultra
vires was not pleaded nor in any way brought to the notice of
the court below. The defendant therefore is not entitled to avail
himself of it upon this writ of error.
Bell v.
Bruen, 1 How. 169;
Marine
Bank v. Fulton Bank, 2 Wall. 252;
Klein v.
Russell, 19 Wall. 433;
Badger v. Ranlett,
106 U. S. 255;
Union Trust Co. v. Illinois Midland Co., 117 U.
S. 434,
117 U. S. 468.
Whether under these circumstances this Court of its own motion
might take this objection need not be considered, because upon
another ground the verdict must be set aside and a new trial
ordered.
The defendant pleaded only two pleas, the first of which was
simply "covenants performed,
absque hoc" (according to the
form used in Pennsylvania), which put in issue the performance of
the defendant's covenants as well as the performance of the
plaintiff's covenants, as alleged in the declaration, but not the
execution or the validity of the contract sued on.
Wilkinson v.
Pittsburgh Turnpike Co., 6 Penn.St. 398;
Farmers' &
Merchants' Turnpike Co. v. McCullough, 25 Penn.St. 303.
The other plea set up an agreement between the parties, dated
February 27, 1885, which recited the eighth covenant in the
original indenture of lease, in these words:
"8th. In the event that any of the railroad companies mentioned
in the assigned contracts shall at any time during this agreement
refuse to permit the cars of the second party to be run on and over
their respective lines of roads, so that, by reason of such
prevention or refusal, the profits, income, and revenue derived
from and under any other remaining contracts with other and
remaining railroad companies mentioned in the assigned contracts
shall fall below the sum of two hundred and sixty-four thousand
dollars, then and in that event said second party shall have the
right either to declare this contract null and void and surrender
to said first party the said hereinbefore demised property or shall
and will pay, in like manner, in lieu of the said sum of two
hundred and sixty-four
Page 139 U. S. 64
thousand dollars, such sum or share of the net revenue from the
remaining lines of the roads as the parties hereto may at that time
may agreed upon."
The agreement pleaded also recited the refusal of some of the
railroad companies therein mentioned to permit the leased cars to
run over their roads, leaving only certain lines over which the
defendant was still running cars under a contract with the
Pennsylvania Railroad Company, which expired January 27, 1885, and
that the defendant was negotiating a new contract with that
company, the annual income and revenue to be derived from and under
which, applicable to the payment of rent under the indenture of
lease, would fall much below the sum of $264,000, the rent agreed
on in that indenture, and that it had become necessary to modify
that indenture in respect to the rent and otherwise.
By this agreement, in consideration of the premises, it was
agreed that an annual rent of $66,000, in equal quarterly payments,
together with one-fourth of the taxes to be paid by the plaintiff
to the State of Pennsylvania, should be paid by the defendant to
the plaintiff in lieu and instead of the aforesaid sum of $264,000,
and other stipulations were made in modification of the original
indenture.
The plaintiff filed a replication, denying the making of the
agreement pleaded.
At the trial in June, 1886, the plaintiff gave in evidence its
charter and the indenture counted on, and proved that it had
received only $33,000 for rent during the six months ending July 1,
1885.
The defendant gave in evidence the agreement pleaded, which was
admitted to be under the seals of the two corporations and signed
by the president and secretary of each in its behalf, and to have
been executed pursuant to a vote of the plaintiff's board of
directors.
The defendant offered other evidence tending to show that the
contracts with all the railroad companies had expired and that
those companies had refused to renew them except on terms less
favorable to the defendant, and that by reason thereof the annual
income and revenue derived from and
Page 139 U. S. 65
under the contracts remaining in force fell much below the sum
of $264,000. This evidence was offered, in connection with the
recitals in the agreement of February 27, 1885, for the purpose of
supporting one branch of the defense -- namely that if that
agreement did not govern the extent of the defendant's liability,
yet the plaintiff could recover only a sum equal to the net revenue
derived from such contracts. Upon the plaintiff's objection, this
evidence was excluded, and defendant excepted to the ruling.
The ground of that ruling appears to have been that there was no
evidence to justify the jury in finding
"an election, prior to the commencement of this suit, either to
return the property rented and held, or to pay over the net
earnings referred to in the contract, in case a new contract was
not agreed upon by the parties."
The court afterwards submitted the case to the jury upon two
questions (concerning which much evidence had been introduced by
both parties) -- whether the plaintiffs' directors had authority
from the stockholders to make on its behalf the agreement of
February 27, 1885, and whether the delivery of that agreement was
on the understanding that it should take effect immediately, or
that it should be conditional upon the approval of the
stockholders, and instructed the jury that to warrant a verdict for
the defendant both these questions must be answered in the
defendant's favor
But that agreement was admitted to have been executed and
delivered in behalf of the plaintiff corporation, in due form, by
the proper officers, and under a vote of the board of directors.
Even if, for want of assent of the stockholders, it did not bind
the corporation as fixing a new rate of compensation, it was
competent evidence against the corporation that the contracts with
the railroad companies had been terminated and the revenue derived
from such contracts thereby diminished. The rulings and
instructions which denied it that effect and excluded from the
consideration of the jury other evidence of those facts rest upon a
misconception of the true scope and meaning of the eighth covenant
in the original indenture of lease, above quoted.
Page 139 U. S. 66
The manifest purpose and meaning of this covenant are that, in
the event supposed, of any of the railroad companies' refusing to
permit the defendant's cars to be run over their roads and of the
defendant's income's and revenue's thereby falling below the annual
sum or rent of $264,000, the defendant shall not continue to be
liable to pay that rent or sum, but may elect to declare the lease
void and to surrender to the plaintiff the leased property, or, if
it does not elect to annul the lease, shall pay, in like manner as
and in lieu of the said sum of $264,000, such sum or share of the
net revenue from the remaining lines of road as the parties may at
that time agree upon. The alternative required of the defendant is
not that the defendant shall elect to avoid the lease or shall
elect to pay a share of the net revenue, but the alternative is to
declare the lease void or to pay a share of the net revenue. The
only affirmative election contemplated, as affecting the extent of
the defendant's liability, is an election to declare the lease
void. If the defendant in the event supposed elects to declare the
lease void, it is no longer liable for any rent whatever. If it
does not elect to declare the lease void, it is no longer liable
for the original rent, but, by the express terms of the covenant
and without any further act or election on its part, it is bound to
pay such sum or share of the net revenue from remaining railroads
as the parties may at that time agree upon. If the parties do not
agree upon that sum or share, the sum which the defendant shall pay
must of course, as in all like cases, be assessed by the jury in
the nature of a
quantum meruit, depending upon the
benefits received by the defendant, and cannot possibly exceed the
whole of the net revenue received by the defendant from the
remaining railroad contracts.
The erroneous exclusion of the evidence offered by the defendant
and above stated, directly affecting the amount which the plaintiff
by the terms of the original lease was entitled to recover,
requires the verdict to be set aside and a new trial ordered, and
there is no occasion to consider whether there was any error in the
rulings and instructions of the court concerning the questions
afterwards submitted to the jury, because
Page 139 U. S. 67
upon another trial the case may be presented in a different
aspect.
Judgment reversed, and case remanded, with directions to set
aside the verdict and to order a new trial.
MR. JUSTICE BROWN, not having been a member of the Court when
this case was argued, took no part in its decision.