WABASH, ST. L. &I
sound or not, inasmuch as the maintenance of the wires of the complainant upon the structures of the railway company is not at present attended with any public inconvenience, and the question is one of sufficient novelty and importance to be considered by the court of last resort, any doubt should be resolved in favor of the complainant, for the purpose of its temporary protection. It is alleged by the complainant that in proceeding to enforce these statutes the defendants are attempting to compel it to place its wires in some of the subways of the subway company which are insufficient and defective to a degree that will seriously affect the workings of its wires. Jtis needless to say that the defendants deny this averment. However the fact may be, the defendants are not acting mala fide, and as they are exercising discretionary powers as public officers, which are lawful within the scope of their authority, the exercise of that discretion in good faith will not be reviewed by a court of equity, and their determination is conclusive. The well-settled doctrine concerning the exercise of duties by public officers is that, so long as they confine themselves to such as are confided to them by law, the court will not interfere to see whether 'theY are acting wisely or judiciously. Gaines v. ThornpsO'n, 7 Wall. 347; Philipsv. Wickham, 1 Paige, 590; High, Inj. § 1240; 2 Story, Eq. Jur. (l3thEd.) § 955. An order will be entered denying an injunction, and vacating the stay heretofore granted as respects the removal of thl;l complainant's poles and wires from the streets, and granting an injunction against any interference by the defendants with the complainant's use of the structures of the Manhattan Railroad Company for operating and maintaining its lines.
CENTRAL TRUST Co. OF NEW YORK et al. 'V. WABASH, ST.L. &P. Ry. Co. et 01., (CINCINNATI, 1., ST. L. & C. Ry. Co., Intervenor.)
. (Cirouit Court, E. D.
E. D. May 1,1889.)
Intervenor's freight agent at Cincinnati telegraphed to the receivers' freight agent at Springfield. Ill.: "Am asked to name rate on coal for Gas Co., Cin't. tl? .Springlield, lll. Can I necessary rate, on agreed per cents.· Vla Lafayette?" The recelvers' agent "YOl,l are at liberty to make necessary rate on coke to Springfield Gas Co. and prorate on agreed 'per cents.' via Lafayette. Ind." Intervenor's agent, on receipt of this. rephed: "See my wire 29th regarding rate on coal for Gas Co., Springfield. Answer." This was ,responded to by a second telegram saying: "You are at liberty to make necessary rate on coal for Springfield Gas Co.," etc. Held, that the receivers could not repudiate the transaction on the ground that permission was given.to make a rate only on coke. and not on coal. . The recehcers' freight agent had lived in Springfield. Where the gas company referred to in the telegrams was located. for B number of years; and he admitted that if he had understood the telegrams to refer to coal, he would have taken them to mean a season's supply of coal for the gas company. Held,
. ' "
2. SAME-'-CONSTRUCTJON-SURROUNDING CIRCUMSTANCES.
'DVERAL"REPOBTER, vol. 88.
that the defense could not be made that the contract evidenced by the telegrams was,for an indefinite quantity Of coal, and did not authorize the inj;ervenor to make a contract for transportation of 5,000 tons of coal for the gas company, to be delivered during the year.
SAME-'-DISPUTING CONTRACT AFTER PARTIAL PERFORMANCE.
The receivers having been notitiedof the contract made by the intervenor with the shipper on the strength of the telegrams, and having complied therewith until it was half executed, it is too late to object that the telegrams did not authorize a contract for shipment of so large a quantity.
On Exceptions by Intervenor to Master's Report. This was a proceeding by the intervenor to compel the receivers ofthe 'Wabash, St. Louis & Pacific Railway Oompany to refund freight over· charges on 5,000 tons of coal transported over intervenor's line from Oincinnati to Lafayette, Ind., abdthence over thel'oad in charge of the ra'ceivers to Springfield, Ill. In January, 1885, the following telegrams qwere interchanged between theintervellor's general freight agent and the l'eceivers'division freight ageut, stationed at Springfield, IlL: "JANUARY 29th, 1885. "iI. D.(}ould; Wabash Ry" Bprt'f/-gft,eld,: Am asked to name rate on coal for Gas Co. Gin'tto Springflel4, Ill. Can I make necessary rate, divided on agreed per c:ients., via Lafayette?' , , H. J. PAGE." "JANUARY 30th, 1885. , "H. J". Page, OincinnaU, Ohio': . You are at liberty to make necessary ,'rate' on coke to Springfield' Gas Co'., and prorate on agreed lJer via Lafayette, Ind. ' H. D.,GOUI,D, Sem." ,. , ' ·J ' u j A ' N t J ' A R Y 31st, 1885. "p. D. (}ould, Springfield: Seemf wire 29th regarding rate'one.OaI'!or Gas Co., Springfield. Answer. H. J. PAGE." "JANUARY 31st, 1885. "H. :T. Page, Oin., 0.: You are at liberty to make necessary rate on coal for Springfield Gas Company, and prorate on agreed per cent., via Lafayette. SllpoQd ,; " ,', '. \ G<?;jULD. F. At time the sent, by an agreement then in force between the illtervenof:Rnd.the .receivers, the through, rate on property transported from Oincinnati to Springfield was divided in the proportion of.5299 per cent. to the intervenor and .4701 per cent. tothe receiveta. 31, 1885, intervenor's general : freight agent in Anril, 1885" entered into a contract with the Marmet : OMI Company totransp0l't 5,000 'tons of coalfro11l Oincinnati to Spring'field, for deliveryt,othe Springfie41<1as Oompanyat the rate.of$1.25 'per ton. . Prior thereto, and after telegraphic correspondence aforesaid, 'intervenor's freigQt agent rate of $1.25 per tonJo the. MarOoal and,on,ithe faith thereof .tbeMarmet had made proposals to supply the Springfield Gas Company with 0,000 tons of coal delivered free onboaru cars at Springfield, Ill., which pro>p6salshad been accepted: The generaUreight agent complied ,with the contract made> by general freight agent until 65 "car-loads' of coal had been: shipped ;and freight i collected. thereafter
CENTRAL TRUST CO.·OF
YORK v. WABASH, ,Sr.
L & P.
to comply with. the agreement, and collected freight at the of$2.80per tqn. Intervenor, having refunded to the Marmet Coal C:ompany ,the overcharges so made, fi,led its intervening petition to recovet from the receivers their proportion of the sum so refunded. John a. Orrick, for intervenor. H. S. Priest and George S. Graver, for receivers. THAYER, J. 1 have examined all of the testimony in this case, and am unable to conc'lr in the conclusion announced by the master in his report. I think the testimony shows an agreement on the part of the receivers to allow the intervenor' to make such through rate on coal shipped to the Springfield Gas Company, from Cincinnati, Ohio, as .intervenor might deem pl'oper, and to divide the through rate in certain proportions theretofore agreed upon,-that is to -say, the receivers to have .4701 per. and the intervenor .5299 per cent. The master to have the telegrams mentioned, as though sent by Mr. Gould, or by his authority, and in that I 'think he was right. The answer to the intervening petition did not deny that the telegrams passed between Mr. G<;mldand ¥r. It averred simply that the messages all related to the transportation of coke. By this I understand the pleader to mean, simply, that the word "coal" should be read "coke" wherever it appears in the messageSj not that the parties who indited the messages in the name of Mr. Gould had no authority to send them, or to reply to Mr. Page's inquiries. The master apparently took the same vie,,'. He concludes, however, that as Gould meant" coke" when he said "coal" inth.e telegram of January 31,1885, whereas Page' had asked him about uco:il," that there was no such consenlrUB or meeting of minds as will make a contract. This conclusion 1 am forced toregard as erroneous. There must ;he a me.eting of minds to make a valid agreement. But where proWSitions are made and accepted in writing, and the language used is not ambiguous, parties cannot be permitted to say that they meant something entirely different from what the language imports. Mr. Page inquired about "coaL" In response Gould gave him permis::;ion to name a rate on "coke." Page then requested him to see telegram concerning "coal," and Mr. Gould, atter his attention had thus been explicitly called to the message of January 29, 1885, which read "coal," gll.ve him authority to fix a rate on coal. I do not see upon what ciple the receivers can be allowed to say that their agent meant "coke," but inadvertently used the word "coal," and hence that there was no contract. That view of the law would permit any agreement in writing to be upset by oral testimony. If the language had heen fairly susceptible of two meanings, so as to lay the case open to oral explanation of whatwas intended"and it appeared that the contracting parties had in mind a different subject-matter, it might well be said that there was no meeting of minds,. apd hence no contract. But that was not the case. Authority to a. ,rate on <;oal was authority was given. A a price, on sugllr, who should comply by naming,apriceoD mentioned"might as well d,efend by saying that
, .,' ". .. . .. · ,.'.. '. : . . , <.
FEDERAL RE:PORTER J
there no ConBen8U8 beCause he meant "salt" wheh he said "sugar." It appears to me that a defense of that character ought not to be allowed. I think that the master made a' wrong application of the doctrine invoked.' It is contended by the receivers' counsel that, even if the telegrams constituted a contract. it was indefinite as to the amount of coal to be shipped, and as to the time during which shipments were to be made, and that it did not authorize the intervenor to nlake a contract for the transportation of 5,000 tons of coal to be carried during the year. I cannot concur in that view of the case. The telegrams must be read in the light of all the surrounding circumstances. The part.ies between whom the telegrams passed were freight agents of two connecting railroads that together formed a continuous line between Cincinnati, Ohio, and Springfield, Ill. These roads appear to have interchanged freight in considerable quantities, and to have had intimate relations. The percentage that each should receive of the through rate from Cincinnati to Springfield, and Vice, versa, had already been settled by an agreement theretofore made. Intervenor was asked to name a special ,rate on coal ill view of a proposal about to be made'by one of its customers to supply coal to the Springfield Gas Company. The telegrams addressed to Gould advised' him that a rate had been asked on coal to be shiPPed to the Springfield Gas Company. Mr. Gould had been stationed at SpriJ;lgfield as division freight agentfo'ra long time prior thereto, and probably knew about whatguantity of coal that company bought, and how it was moved. He was advised, therefore" of the commodity to be shipped', and the name of the consignee, and in all human probability had an, approximately correct idea of the amount of coal to be carried,and the period during which shipments would continue. Mr. Gould himself says that if he had understood the telegram tOJ:elateto coal, he shOl;ild have understood it to relate to a season's supply of coal for the gas 'COnl pany. Read in the light of these circumstances, and the relations existil1 g between the parties, the telegrams, in my opinion, fully authorized the contract made by the intervenor with the Marmet Coal Company. , ' But, evenif.the contract made by the interVenor was in excess of the authority collferred by the receivers through their agent, Mr.,Gould, the fact nevertheless remains that, after being advised of the contract with the Marmet Company, and that intervenor would hold them' to the agreement made by Gould, the receivers nevertheless complied with the contract until 'it was half executed, that is, until August or September, 1885" It was certainly too 'late W ignore the contract atter silch a long period of acquiescence. In my opinio11, therefore, the receivers ought to live up to the bargain made by their agent, even though it does enta:il a considerable loss, and eventhough Mr. Gould acted under a misapprehensionwpenhe gave Mr. Page perinission to name a rate on coal. In view oithe authority gh'ento Mr. Page early in January, 1885, to name ,8 rate on coke, it is difficult to understand &ow Mr. Gould came to read'the telegrams of January 29th and 31st as relating to 'coke; ',I have
.'NEAL PIPE .. FOUNDRY 00. fl. But.LOCL
looked through the 'testimony carefully, and I cannot find the slightest evidence of any bad faith on the intervenor's part. The exceptions to the report will be sustained. The intervenor's in the sum of $4,322.23 will be allowed, but, inasmuch as the master reports that intervenor is indebted to tbe receivers in the sum of 81,419.99, the receivers will be permitted to file a counter-claim for that sum, and it will be allowed, and deducted from the sum of $4,322.23, making intervenor's net allowance, $2,902.24. A reference back to the master is unnecessary.
McNEAL PIPE &
BULLOCK et ale
(C'if'IlUit Court, 8. D· .Alabama,
MECHANICS' LIENS-PROPERTY SuBJECT TO-CITY WATER'WORKS.
Code Ala, 1876, 8440, giving mechanics or material-men doing work or material for improvements on land, contract w,ith the owner, or w'lth one having such a contract with the owner, a lien on the l!,ud and improvements, does not entitle one furnishing material used .by contractors In cQnstructing city for a water company to a lien against the pipes. appliances, etc., of the plant, some of which are laid under the streets of the CIty, as such a corporation Is quaJJi public, and, in the absence of ,an express statutory provision, property intended for public use is not liable to luch alien., A complaint seeking the enforcement of such an alleged lien, not averring that the defendant water company is the owner of the land on which the works sought to be subjected are situated, is insufficient for that reason. Such a complaint is also defective if it fails to allege that at the time plaintiff gave the defendant water company notice of its alleged lien the latter was indebted to the contractor under the contract.
At Law. On demurrer to complaint. Samuel R. Bullock & Co.,contractors, of New York, with the Bienville Water Supply Company; of Mobile, laid down in Mobile city and county the pipes of an extensive system of water-worlrs, bringing water from Clear creek,-ll miles distant. When completed, the pipes were, as a part of the plant, turned over to the Bienville Water Supply Company of Mobile. This company, since the fall of 1887, has been in the operation of this system, which has become the main source of ,:water supply for the city of Mobile.' The action is brought by the manufacturers of the pipe to fix a lien thereon under the Dlechanic's lien law of Alabama., Code1876, § 3440, provides that any person doing work furnishing material for the improvement of or erection of a building on mnd under a contract with the owner or, his agent, or as a subcontractor under one having such a contract, shall have a lien on the land and improvement to the amount of his work done, Olark Olark, for plaintiff. Hamutons Gaillard aud Ovei'aU Be8tor, for defendants.
!1'oULlIIN, J. It appears -frottl the declaration that the BienvilleWa:ter Supply Company is a public corporation or quasi public corporation