When the record contains special findings of fact, but no bill
of exceptions, the errors of law relied upon by a plaintiff in
error must be considered and determined upon the findings.
If a contracting party absolutely binds himself to perform
things which subsequently become impossible of performance, or to
pay damages for the nonperformance thereof, and the thing which
causes the impossibility might have been foreseen and guarded
against in the contract, or arose from the act or default of the
promisor, he will be held to the strict performance of his
contract; but if the cause of the impossibility be of such a
character that it cannot reasonably be supposed to have been in the
contemplation of the contracting parties when the contract was
made, he will not he held bound by general words, which, though
large enough to include it, were not used with reference to the
possibility of the particular contingency which afterwards
happened.
A railway company and several individuals entered into a
contract for the construction of a grain elevator by the latter,
wherein the company agreed
"that the total amount of grain received at said elevators shall
be at least five million bushels on an average for each year during
the term of this lease, and in case it shall fall short of that
amount the said party
Page 149 U. S. 2
of the first part agrees to pay to the said party of the second
part one cent per bushel on the amount of such deficiency,
settlements to he made at the close of each year, and whenever it
shall appear at the close of any year that the total of grain
received during so much of the term of this lease as shall then
have elapsed does not amount to an average of five million bushels
for each year, the party of the first part shall pay to the parties
of the second part one cent per bushel for the amount of such
deficiency; but, in case it shall afterwards appear that the total
amount received up to that time equals or exceeds the average
amount of five million bushels per annum, the amount so paid to the
party of the second part shall be refunded or so much thereof as
the receipts of the year shall have exceeded five million bushels,
so that the whole amount paid on account of deficiency shall be
refunded, should the total receipts for the entire term equal or
exceed fifty million bushels in all, or an average of five million
bushels for each year."
Held that the railway company only agreed that the
quantity of grain which it would deliver at the elevators or tracks
connected therewith, in the usual way in cars, for storage and
handling; should amount on an average to at least 5,000,000 bushels
per annum for a period of ten years, and that, in case the grain so
delivered or brought to the elevators for delivery fell short of
that quantity, it would pay one cent per bushel on the amount of
such deficiency.
The case is stated in the opinion.
MR. JUSTICE JACKSON delivered the opinion of the Court.
This action was brought by defendants in error against the
plaintiff in error to recover a designated sum of money alleged to
be due under the terms of a covenant contained in a certain
indenture of lease made and entered into between the parties. The
cause was tried by the court below under a written stipulation of
the parties, waiving a jury, and resulted in a judgment for the
plaintiffs below for the sum of $33,783.83, to reverse which, for
errors of law claimed to have been committed by the court in its
construction of the covenant and in the legal conclusions it
reached from the facts specially found, this writ of error is
prosecuted.
Page 149 U. S. 3
On February 18, 1880, the Chicago, Milwaukee and St. Paul
Railway Company hereafter called the "Railway Company," being the
owner thereof, leased and demised to the defendants in error lots
3, 4, and 5, of block K, of the original Town of Chicago, for a
term of ten years from the first day of January, 1881 at an annual
rental of $3,850, to be paid quarterly by the lessees, who were
also to pay all taxes and assessments that might be levied upon the
premises during the term. At the date of the lease, the lessees
were the owners of the adjoining lots 1 and 2 of the same block,
upon which was located an elevator or warehouse, used for
receiving, storing, and handling grain, and having a capacity of
about 350,000 bushels. The lease was executed under seal of the
respective parties thereto, and the material provisions thereof, so
far as they relate to the present controversy, are as follows:
By the second article, Hoyt and his associates agreed to erect
on said lots 3, 4, and 5 a grain elevator, "of a storage capacity
of 700,000 bushels or more, during the year 1880." The article
provided that the elevator should have all modern improvements, and
should be constructed to the satisfaction of the railway company.
No question is raised upon this article. The case admits that it
was fully executed.
By the third article, the railway company
"agrees to lay all necessary tracks adjacent to said elevator,
to connect its railway therewith for the purpose of delivering
grain in cars thereto, and keep the same in repair during the time
of this lease, and agrees to deliver on said tracks, in cars at
said elevator, to the parties of the second part, all the grain
that may be brought by its railway, consigned to parties in the
City of Chicago, so far as the party of the first part can legally
control the same, for handling and storage in said elevator."
The case involves no breach of this article.
By the fourth article, it is provided as follows:
"The said parties of the second part [Hoyt and his associates]
agree to receive, handle, and store said grain, as delivered, in
the usual manner of handling grain in the City of Chicago, to the
extent and capacity of said elevator to be constructed, and in
addition agree that they will use for the same purpose, so far as
their
Page 149 U. S. 4
other engagements will allow, the elevator now standing on lots
1 and 2 of said block, and the said party of the first part shall
at all times be entitled to storage for its grain to the extent of
at least 1,000,000 bushels. The parties of the second part, with
the consent of the party of the first part, may receive grain for
storage from other parties, and from river and canal craft; but in
case such grain is so received so as to reduce the capacity of the
parties of the second part to accommodate the party of the first
part to the extent of 1,000,000 bushels in said elevators, the said
parties of the second part agree to furnish storage in other
elevators to the party of the first part to the extent that their
capacity is so reduced, without expense to the said party of the
first part for switching or otherwise."
The case involves no violation of this article by either of the
parties.
The fifth, sixth, and seventh articles, taking them in their
order, relate 1st to the charges to be made for the storage and
handling of grain, certain elevators accommodating the grain
business of competing railways being referred to as a standard, 2d
to the rebuilding of the elevator in case of its destruction by
fire or other casualty, and that the
"parties of the second part will save the said party of the
first part free and harmless from all loss or damage by fire to
said elevator or contents during the continuance of this lease, and
3d to the weighing of the grain received into the elevator and the
appointment of weighers. In all these respects, the case presents
no question of controversy."
The last clause of the seventh article reads as follows:
"It is further agreed that the parties of the second part will
at all times keep a force at said elevators sufficient to transact
all business that may be offered by said party of the first part,
and that cars of grain will be received and unloaded, when the
business of the party of the first part requires it, in the
nighttime or on Sundays, and that said business shall be dispatched
with equal and as great facility in that respect as at any of the
elevators in the City of Chicago above mentioned, so as not to
delay the cars of the party of the first part unreasonably or
unnecessarily. "
Page 149 U. S. 5
It is upon the alleged breach of the eighth article of the
contract that this suit is brought. That article reads as
follows:
"In consideration of the agreement aforesaid, the said party of
the first part agrees that the total amount of grain received at
said elevator shall be at least five million bushels, on an
average, for each year during the term of this lease, and in case
it shall fall short of that amount, the said party of the first
part agrees to pay to the said parties of the second part one cent
per bushel on the amount of such deficiency, settlements to be made
at the close of each year, and whenever it shall appear at the
close of any year that the total grain received during so much of
this lease as shall then have elapsed does not amount to an average
of five million bushels for each year, the party of the first part
shall pay to the parties of the second part one cent per bushel for
the amount of such deficiency. But in case it shall afterwards
appear that the total amount received up to that time equals or
exceeds the average amount of five million bushels per annum, the
amount so paid to the parties of the second part shall be refunded,
or so much thereof as the receipts of the year shall have exceeded
five million bushels, so that the whole amount paid on account of
deficiency shall be refunded, should the total receipts for the
entire term equal or exceed fifty million bushels in all, on an
average of five million bushels for each year."
The remaining articles of the contract, including the supplement
thereto, are comparatively unimportant.
In May, 1888, the defendants in error brought their action of
covenant against the railway company in the Superior Court of Cook
county, Illinois, for the alleged breach of the contract and
agreement embodied in said article 8 of the lease. The railway
company, being a citizen of Wisconsin, removed the cause to the
United States Circuit Court for the Northern District of Illinois.
The declaration contained two special counts, and the same breaches
are assigned in each count. In the first count the contract is set
out
in haec verba, the second according to its tenor and
effect.
The first breach assigned was that the grain received for
Page 149 U. S. 6
storage from the railway company during the year 1886 was less
by 1,740,194 bushels than the 5,000,000 bushels covenanted to be
received, and therefore the railway company became bound at the
close of the year 1886 to pay the plaintiffs (defendants in error),
on account of the deficiency, the sum of $17,401.94.
The second breach averred that the grain received for storage
from the railway company during the year 1887 was less by 2,042,408
bushels than the 5,000,000 bushels covenanted to be received, and
therefore the railway company became liable at the close of the
year 1887 to pay to the plaintiffs (defendants in error), on
account of the deficiency, the sum of $20,424.08.
The main breach specially set up and relied on is the third,
which comprehends the other two, and is thus stated in the
declaration:
"The said plaintiffs further aver that the total amount of grain
received in the elevators mentioned in said indenture during the
years 1886 and 1887 did not equal the ten million bushels, or five
million bushels upon an average for each of said years, covenanted
by the defendant in said indenture to be therein received during
those years, but, on the contrary, the said plaintiffs aver that
the total amount of grain received in said elevators during said
two years, allowing to the defendants the full storage capacity in
said elevators of one million bushels stipulated for in said
indenture, was less than the ten million bushels promised to be
therein received by the defendant as aforesaid during said years
1886 and 1887 by three million seven hundred and eighty-two
thousand six hundred and two (3,792,602) bushels. And the
plaintiffs aver that, on account of said deficiency between the
amount of grain promised by the defendant to be received in said
elevators and the amount actually received therein during said
years, the said defendant became and was liable to pay to the
plaintiffs, according to the terms and provisions of said indenture
of lease and agreement and its further covenant in such case
therein provided, the sum of one cent per bushel upon the total
number of bushels constituting the deficiency of said years 1886
and 1887, whereby and by reason whereof the said defendant
Page 149 U. S. 7
by virtue of its covenant aforesaid, became liable to pay to
said plaintiffs thirty-seven thousand eight hundred and twenty-six
dollars and two cents ($37,826.02) at the times and in the manner
in said indenture provided."
On demurrer of the defendant to the declaration being overruled
by the court, 39 F. 416, so far as it related to the breaches thus
charged, the defendant interposed a plea of general performance,
and by stipulation of the parties it was agreed that
"said cause shall stand for trial upon the single plea of
general performance, first pleaded by said defendant, and the issue
made thereon, with the right reserved to either party to introduce
on the trial of said cause under said issue all evidence which
could be properly introduced under any issue legitimately framed
under special pleas applicable to the case, and that upon the
filing of this stipulation, all other pleas filed herein by the
said defendant shall be considered as withdrawn."
The cause was thereupon submitted and heard upon its merits by
the court below, which made the following special findings of
fact:
"First. It found the contract, as already recited, duly made and
entered into between the parties."
"Second. That said elevator was constructed upon the lots named
in said agreement, and was completed within the time and in
accordance with the terms and conditions of said agreement, on or
about the 24th day of December, A.D. 1880, with a working capacity
of 750,000 bushels; that the storage or working capacity of the
elevator known as the 'Fulton Elevator' was 350,000 bushels, both
elevators affording storage and working capacity of about 1,110,000
bushels of grain, and that the cost of construction said new
elevator was about the sum of $200,000."
"Third. That the said Munger, Wheeler and Co., as assignees of
Jesse Hoyt and his associates, built said new elevator, and have
controlled and operated both elevators since December, 1880, and
are now operating the same, and that said firm during said time
also owned and controlled six other elevators, all located in the
City of Chicago, upon other
Page 149 U. S. 8
railroads entering into said city, and that at the present time
said firm controls and operates, in all, eight grain elevators in
said city, with an aggregate storage or working capacity of about
6,000,000 bushels of grain."
"Fourth. That in the year 1886, the plaintiffs received from the
defendant, for store in the St. Paul or new elevator, 1,923,339
bushels of grain, and in the Fulton elevator, 903,482 bushels, and
also that the plaintiffs received from the defendant, for storage,
432,985 bushels of grain in the Union elevator, located on the
Chicago and Alton Railroad, in the City of Chicago, making a total
for the year 1886 of grain received by the plaintiffs from the
defendant of 3,259,806 bushels, all of which is credited to the
defendant in its account for that year."
"That in the year 1887, the plaintiffs received from the
defendant in the new or St. Paul elevator 2,300,292 bushels of
grain, and in the Fulton elevator, 657,300 bushels of grain, making
a total of 2,957,592 bushels of grain received by the plaintiffs
from the defendant during the year 1887."
"That all the grain received and handled by the plaintiffs in
the Fulton and St. Paul elevators during said years was received
from the Chicago, Milwaukee and St. Paul Railway Company."
"Fifth. The court further finds that the plaintiffs admitted in
open court that, during the years 1886 and 1887, grain was tendered
by the defendant to the plaintiffs for storage, and that it could
not be received for the reason that the plaintiffs' warehouses were
filled; that the grain so tendered amounted to 8,685,269 bushels,
and that the plaintiffs never declined to receive shipments of
grain from the defendant when such elevators had capacity to
receive it within 1,000,000 bushels, and that when the plaintiffs
refused to receive further grain for storage, the defendant was
notified that it occupied the entire capacity stipulated for in the
contract at the time plaintiffs declined to receive the grain so
tendered, to-wit, 1,000,000 bushels."
"Sixth. That for the year 1886, the defendant paid for switching
grain to other elevators, when the plaintiffs were
Page 149 U. S. 9
unable, and therefore refused, to accept the same, the sum of
$2,871, and in the year 1887 the sum of $9,962.35, and that the
cost of train service for the defendant in delivering such grain to
other elevators amounted to about the same sum."
"That the defendant also during said year contracted with
parties having grain stored in said elevators to remove the same in
order to furnish more room for the defendant; that for the removal
of 100,000 bushels the defendant paid the owners thereof $15,000,
and that after such removal the plaintiffs refused to receive from
the defendant for storage more than 40,000 bushels in place of the
grain that had been so removed, for the reason that that amount of
additional grain exhausted the storage and hauling capacity of said
two elevators; that it was to the interest of the defendant to
deliver all the grain to the plaintiffs at said St. Paul and Fulton
elevators during said years."
"That during the two years in controversy, the entire storage
capacity of said elevators was constantly occupied by grain
received from the defendant's cars, and although the plaintiffs
refused to receive additional grain tendered by the defendant
during the same period, their refusal was always based upon the
ground that their elevators were full, and contained more than
1,000,000 bushels of grain received from the defendant."
"That at no time during the said years 1886 and 1887 did the
plaintiffs refuse to receive grain from the defendant for storage
in said elevators when there was any unoccupied storage space in
the same, and that some of the grain so delivered and stored during
said years remained in said elevators so long that the plaintiffs
were not able to receive or handle for defendant during said years
the amount of grain contemplated by the contract, or the full
amount actually tendered by the defendant, and that but for this
unusual condition, the plaintiffs would have received and stored
all the grain tendered by the defendant."
"Seventh. The court further finds that the plaintiffs' regular
charges for storage of grain in said elevators during the years
1886 and 1887 were one and three quarters of a cent
Page 149 U. S. 10
per bushel for the first ten days and one and one-half of a cent
per bushel for the subsequent ten days, and for every thirty days,
the storage charges were one cent and three quarters per bushel;
that for 1,000,000 bushels stored in such elevators and continued
therein for one year, the regular storage charges for the same
during the years 1886 and 1887 would be at the rate of $150,000 for
each 1,000,000 bushels for the term of one year; that if said
elevators could be kept employed with first storage -- that is, if
1,000,000 bushels could pass through said elevators each ten days
-- the charges for a year would amount to about $270,000."
"That the length of time that said grain remained in store was
not regulated or controlled by either the plaintiffs or defendant,
but by the shippers or owners of such grain."
"Eighth. That the plaintiffs have kept the accounts of all their
elevators together, and therefore could not state the earnings of
the elevators in question for the years 1886 and 1887."
"Ninth. There is no evidence of the amount of earnings of said
St. Paul and Fulton elevators during the years 1886 and 1887, or of
the income of the plaintiffs derived from the storage of grain or
charges thereon in said elevators during said period of time, nor
is there any evidence of any actual damages sustained by the
plaintiffs by reason of their not handling in said elevators,
during said years, the full amount of 10,000,000 bushels of grain,
or by reason of the alleged breach of covenant by the defendant,
other than the one cent per bushel for the years 1886 and 1887, as
prescribed by article 8 of the contract."
As the result of these findings, the amount of the deficiencies
for the years 1886 and 1887, with interest from the end of each
year to September 25, 1889, was ascertained to be $42,806.13, from
which was deducted the rental and interest thereon for the years
1886 and 1887, set up as a counterclaim, amounting to the sum of
$9,022.30, which left a balance due from the defendant to the
plaintiffs of $33,783.83, for which judgment was rendered.
The defendant moved for judgment on various grounds,
Page 149 U. S. 11
which were denied by the court, and which need not be specially
noticed, as they are covered by the assignments of error.
In the view we take of the case, it is not necessary to consider
several questions presented by the plaintiff in error, such as want
of mutuality in the covenant in question, or the impossibility of
the performance thereof, or that it was a wagering contract and
ultra vires on the part of the railway company. The
material questions of the case are covered by the two assignments
that the judgment is not sustained by the special findings of fact
and that the court erred in its construction of the contract
between the parties. There is no bill of exceptions in the record,
and the errors of law relied upon by the plaintiff in error must
therefore be considered and determined upon the special findings of
fact.
The action of the lower court in overruling the demurrer to the
declaration proceeded in part, if not entirely, upon the ground
that the undertaking entered into by the railway company in and by
the eighth article of the lease amounted to a guarantee that the
business of the elevators during each year of the term should
amount to a certain sum. As we understand their position, counsel
for the defendants in error do not, however, insist upon this
construction of the covenant, but rely upon the interpretation
given it by the circuit judge at the hearing on the merits, which
was
"that if, with a storage capacity of 1,000,000 bushels, the
plaintiffs should not be able to receive and handle 5,000,000
bushels annually and earn commissions on that basis, the defendant
would pay to the plaintiffs one percent per bushel on the
deficiency."
If the true meaning and intent of the covenant -- read, as it
should be, in connection with the other provisions of the contract
and in the light of the surrounding circumstances, the situation of
the parties, and the objects they respectively had in view -- were
to guarantee to the lessees that they would actually receive,
store, and handle at the designated elevators, on an average, each
year of the lease, as much as 5,000,000 bushels of grain, and that
if, in the course of the grain business, they could not in fact
receive, store, and handle more than
Page 149 U. S. 12
1,000,000 bushels during the year, still the railway company
would be liable to them for one cent on 4,000,000 bushels not so
received and stored, although tendered and offered to them in the
manner and at the place provided for in the contract, then there is
no error in the judgment of the circuit court.
If, however, the language of the stipulation means, as counsel
for plaintiff in error contend, that the railway company only
agreed that the quantity of grain which it would deliver at the
elevators or tracks connected therewith, in the usual way, in cars,
for storage and handling, should amount, on an average, to at least
5,000,000 bushels per annum for a period of ten years, and that in
case the grain so delivered or brought to the elevators for
delivery fell short of that quantity, it would pay one cent per
bushel on the amount of such deficiency, then the judgment is
erroneous, and should be reversed. We are of opinion that the
latter construction is the proper one, and meets the real object
and purpose which the parties had in view in entering into the
contract.
To meet a natural and reasonable solicitude of the lessees that
the full supply of grain should be brought to their elevators, the
railway company agreed
"to deliver on said tracks, in cars at said elevators, to the
parties of the second part [the lessees] all the grain that may be
brought by its railway, consigned to parties in the City of
Chicago, so far as the party of the first part [the railway
company] could legally control the same, for handling and storing
in said elevator."
If the railway company had failed to deliver at the elevators
for storage and handling all grain, consigned or unconsigned, which
it brought to Chicago and could legally control, it might perhaps
have been liable to the lessees for the damage thence resulting,
and could not have set up by way of excuse or defense that the
elevators were continuously filled with other grain previously
received from the railway company. The fact that the lessees had
furnished storage for a million bushels received from the railway
company, and thereby exhausted the capacity of their elevators to
take any more grain on storage so long as the million bushels
remained on hand, would not have exempted the railway company from
the obligation
Page 149 U. S. 13
of delivering at the elevators all grain brought by it to the
city, so far as it could control the same. Under this provision of
the contract, if the quantity brought and subject to its control
was four or five million bushels in addition to the million
previously delivered and in store, the railway company would still
be bound to tender such additional grain to the lessees, who, under
the construction placed upon the eighth article of the lease by the
court below, could not only decline to accept the same, but
actually make their inability to receive and store the grain
tendered the basis of a valid claim for one cent per bushel on the
amount so tendered and declined. A result so unreasonable as this
is hardly to be supposed to have been contemplated and intended by
the parties. It is found as a fact that the length of time grain
could or would remain in store was not, and could not, be legally,
controlled by either the lessor or the lessees, but was subject to
the exclusive control, in that regard, of the shippers and owners
of the grain. The construction which was placed upon the contract,
and which is necessary to support the judgment below, would place
the railway company in the position of undertaking to guarantee
that shippers and owners having grain on storage in the elevators
would so deal with, or remove and dispose of, the same as to enable
the lessees to store and handle more grain than the elevators had
capacity for. It is not to be supposed that the railway company was
undertaking to make a guarantee as to how grain owned and stored by
others would be dealt with or controlled, in respect to its
remaining or being removed from the elevators, and the language of
the covenant does not require a construction which would place the
railway company in that position.
The court below attached importance to the use of the word
"received" as employed in the eighth article. The words, "total
amount of grain received at said elevator" would, however, be
pressed beyond their legitimate and proper meaning if construed to
mean that the elevator should actually store and handle 5,000,000
bushels during each year without regard to its capacity or without
reference to the ability of the lessees to accept and store that
quantity. The language of
Page 149 U. S. 14
the covenant is that the
"total amount of grain received at said elevators shall be at
least 5,000,000 bushels, on an average, for each year during the
term of this lease, and in case it shall fall short of that amount,
the said party of the first part agrees to pay to the said party of
the second part one cent per bushel on the amount of such
deficiency."
The agreement or stipulation that the amount of grain "received
at said elevator" should reach the designated quantity falls short
of an undertaking or guarantee by the railway company that the
elevator should in fact store and handle that quantity each year of
the term. The amount of grain "received at" an elevator during a
given period should not be construed as meaning that such amount
would or should be actually taken into the same for storage and
handling unless there is something in the context clearly
indicative of an intention to use the words in the latter sense. No
such intent appears in the present case.
The manifest object and purpose of the covenant were to assure
the lessees that there would be delivered at or brought to said
elevators, by the railway company and others, a total amount of at
least 5,000,000 bushels of grain per annum for storage and
handling, and not that the railway company would guarantee that the
lessees could or would actually receive, store, and handle that
quantity at the elevators. When, therefore, the railway company and
others offered at the elevators the stipulated quantity or amount
of grain, it performed the condition of its guarantee, and the
inability of the lessees to accept the grain so tendered on account
of the storage capacity of the elevators being fully occupied by
third parties, whose action in respect to allowing the grain to
remain or to be removed was beyond the control of either the lessor
or the lessees, cannot operate to defeat such performance or
constitute any ground for thereafter holding the railway company
liable on its guarantee.
There can be no question that a party may, by an absolute
contract, bind himself or itself to perform things which
subsequently become impossible, or pay damages for the
nonperformance, and such construction is to be put upon an
Page 149 U. S. 15
unqualified undertaking where the event which causes the
impossibility might have been anticipated and guarded against in
the contract or where the impossibility arises from the act or
default of the promisor. But where the event is of such a character
that it cannot be reasonably supposed to have been in the
contemplation of the contracting parties when the contract was
made, they will not be held bound by general words which, though
large enough to include, were not used with reference to, the
possibility of the particular contingency which afterwards
happens.
This principle is directly applicable here, for the covenant
sued on cannot be construed to mean that the railway company
contemplated by the terms of its agreement that it was to be held
responsible for the course of business of the lessees, or that it
was undertaking to guarantee that shippers and owners, having grain
in store at the elevators would remove the same with sufficient
dispatch to enable the elevators to store and handle as much as
5,000,000 bushels annually. This would be a most unusual and
unreasonable undertaking, wholly beyond the control and ability of
the railway company to perform, and while the words, "receive at
the elevators," might in and of themselves be broad enough to
include such an undertaking, if the context clearly showed that
such was the intention of the contracting parties, we are of
opinion that they were not so understood and used by the parties in
this case, and should not be so extended as to cover the
contingency or possibility of such a course of dealing as would
prevent the acceptance of grain if the agreed quantity was
tendered. There is no allegation in the declaration that grain to
the amount specified was not, during the years 1886 and 1887,
received at or tendered in cars on the tracks at said elevators for
delivery to the amount of or in excess of 5,000,000 bushels of
grain. On the contrary, the court below finds as a matter of fact
that the defendant in 1886 and 1887 so delivered 6,210,398 bushels,
which was received by the plaintiff into said elevator, and further
finds as follows:
"Fifth. The court further finds that the plaintiffs admitted in
open court that during the years 1886 and 1887,
Page 149 U. S. 16
grain was tendered by the defendant to the plaintiffs for
storage, and that it could not be received for the reason that the
plaintiffs' warehouses were filled; that the grain so tendered
amounted to 8,685,269 bushels, and that the plaintiffs never
declined to receive shipments of grain from the defendant when such
elevators had the capacity to receive it, within a million bushels,
and that when the plaintiffs refused to receive further grain for
storage, the defendant was notified that it occupied the entire
capacity stipulated for it in the contract at the time plaintiffs
declined to receive the grain so tendered, to-wit, one million
bushels."
It is urged in behalf of the defendants in error that this
amount of 8,685,269 bushels so tendered by the railway company
includes the 6,210,398 bushels which the court finds was actually
received into the said elevators during said years. We do not so
construe this finding. Its language relates clearly and distinctly
to an amount of grain that was tendered by the railway company and
which could not be received by the lessees for the reason that the
warehouses were filled. It is thus shown that, in addition to what
was actually received, there was tendered by the railway company at
the place and in the manner provided for in the contract 8,685,269
bushels, which the elevators could not accept and did not receive
and store. The amount so tendered, with that actually received,
exceeded the total amount which the railway company agreed that the
lessees should have the opportunity to accept and store, and this
we hold to be a full and complete compliance by the railway company
with the terms and true meaning of its covenant. To hold otherwise
would render the railway company liable for the inability of the
lessees to accept the performance that was offered by it. It would
require the clearest and most unqualified understanding on the part
of the railway company to subject it to such a liability.
The plaintiff in error interposed a counterclaim for the rent
due it for the years 1886 and 1887, which, as found by the court
below, amounted to $9,022.30, which was deducted from the amount
which the court below adjudged to be due the lessees.
Page 149 U. S. 17
The conclusion of this Court is that the judgment awarded
the lessees is erroneous, and must be reversed, with costs, and
that the cause should be remanded with directions to the court
below to enter judgment in favor of the plaintiff in error for the
above amount of rent due to it, with interest thereon from October
1, 1889, the date of judgment below, and it is accordingly so
ordered.
THE CHIEF JUSTICE, having been of counsel, and MR. JUSTICE
FIELD, not having heard the argument, took no part in the
consideration or decision of this case.