
    International Railway Company, Plaintiff, v. The Central Ice Company, Defendant.
    Fourth Department,
    July 9, 1907.
    Contract — consideration — agreement fo pay railroad for hauling cars —■ ' . measure of liability. •
    The plaintiff railroad entered into a contract with the defendant ice-company, to haul the cars of the latter at a certain-reduced rate, the defendant' agreeing to. pay for the haulage of not less than 500 cars per year. Bach party furnished part of the railroad equipment necessary to carry put the agreement and the railroad bound itself to purchase crushed stone from the ice company. There were many other mutual covenants. The ice company did not ship the full quota of 500 cars in any year.
    On the issue as to whether the .company was required to pay only for the cars actually hauled or must pay for 500 cars each year, iDM, that the mutual covenants of the agreement were consideration for each other;
    That the contract should he enforced according to its-terms and the defendant was required to pay. fo.r 50Q cars per year although not actually hauled;
    That the court was without power to relieve either party from the performance of the covenaiits of the contract.
    Submission of á controversy upon an 'agreed statément of facts, pursuant to section Í279 of the Code of Civil Procedure.
    
      Charles B. Sears, for the plaintiff.
    
      August Becker, for the defendant.
   Williams, J.:

Judgment should be ordered for plaintiff for $2,640, with interest on $1,228 from Jnne 1, 1904; on $872 from June !, 1905* and' on $540 from June 1, 1906, without costs.

The facts stated as briefly as practicable are as follows: The parties are corporations, located at Buffalo. The plaintiff operates a street railway in that city-and- a line therefrom to the villages of Depew and Lancaster by electricity by overhead trolley system. Over the lines to Depew and Lancaster it. carries no freight, and switches and hauls no freight cars, except under the contract with defendant. The defendant carries on an ice business in the city of Buffalo, and has an ice house at Lancaster': July 31, -1903, these parties made a written contract, whereby it was "agreed that the railway company would switch cars between the ice house and quarry and the Buffalo terminal for five dollars j>er car loaded movement, and between the ice house and quarry and the Lehigh Valley switch for four dollars per car, and between the Lehigh Valley switch and the Buffalo terminal for four dollars; and whenever the four dollars per car business amounted to six hundred cars in any one year, the railway company would refund .to the ice company fifty cents per car on such- four dollar car business; that the ice company guaranteed to pay for not less than five hundred cars loaded movement at four dollars per ear each year, but any amount paid for a deficit in any one year should be credited upon any surplus the next subsequent year (the .term of the agreement being five years); that payménts to the railway company should be made on the first day of each month; that in consideration of the reduced rate at which the cars were hauled and the services, were rendered, the railway company'should not-he liable for damages caused by detention or delay or in handling, or to cars or their contents by negligence or otherwise; that the icé company should furnish a bond for" ten thousand dollars for its performance of the agreement, and payments to be made by it, and individual liability of stockholders of parties would be waived;, that the ice company should procure all the necessary consents to the construction and operation of the switches and sidings, should furnish and maintain all cars, and all land for the switches and sidings, pay for all grading, ties, ballasting and laying of the tracks and maintaining the same; that the railway company should pay for the iron and electrical equipment and maintenance of the same, necessary for the switches and sidings, and should be the owner of the same. It was further agreed-that the railway company should purchase from the ice company.and the latter company should furnish all the crushed stone the railway company should require for its use upon its road-, F. O. B; on .'railway company’s cars at the quarry switch át sixty cents per yard, except that the railway company should have the privilege of using stone from the quarries owned or leased by it, and of buying. 3,000 yards of' stone per year from other parties; and if the ice company should be unable to fuTnish the stone upon reasonable request Or notice, the railway company might buy elsewhere, at market prices, and the ice company should pay'the excess therefor over sixty cents per yard, but the railway company should not use to exceed 5,000 yards the first year; the ice company should be relieved from liability as to crushed stone only by the act of God, or matters absolutely beyond its control. The plaintiff has fully performed and been ready to perform all its conditions. The ice company furnished cars for hauling only the following numbers: From June 1, 1903, to June 1, 1904, 193 cars; from June 1, 1904, to Jun.e 1, 1905, 282 cars; from' June 1, 1905, to June 1, 1906, 365 cars; total, 840. The fourth and fifth years had not expired when this submission was made in November, 1906.

The ice company has paid the railway for all cars actually hauled, but has failed to pay for'the deficit of cars, 1,500 less 840, being 660 cars.

The question we are required to answer upon this statement of facts is, whether judgment shall be rendered in favor of the plaintiff for $2,640, with interest on $1,228 from June 1, 1904; on $872 from June 1, 1905, and on $540 from June 1, 1906 ; in - accordance with the strict terms of the agreement, or only to such actual loss as plaintiff shall have suffered by reason of the failure of defendant to furnish cars to be hauled.

If it shall be necessary to ascertain the amount of such actual loss, in order- to render judgment, it is agreed that may be done by a reference.

It seems to us the terms of the contract measure the amount the •plaintiff is entitled to recover. The mutual covenants of the parties were abundant consideration for each other. Each party furnished a part of the property and equipments necessary to carry out the agreement. The price paid for the hauling of the cars was influenced and controlled by the other provisions of the agreement. It is recited that the prices are - at reduced rates, and then the railway company agreed to purchase crushed stone of the ice company as a part of the agreement in question. A large number of cars could be hauled at less éxpense than a small number, the price of each car fixed would be governed by the number of cars. We see no reason why the whole agreement should not be enforcible by both parties according to its terms. - If the railway company is to be compelled to relinquish a part of' its- benefits under the agreement, how can it be compelled to perform the. other, provisions as to crushed stone and hauling cars the remaining years the agreement was to run 1 To illustrate: Suppose at the end' of tlie second year the rights of the parties had been submitted to tlie court for determination, and we had then- held the railway company Could npt- enforce the provisions as,to compensation for hauling cars contained in the agreement, but could only recover its actual loss — could the railway company then be held to the further performance of the contract as to hauling cars or purchasing stone ? It only,agrees to performance of its part in the agreement ripon the performance by the icé company of its part. And if the ice company refused to perform its part, or the court held it,need' not do so, their certainly . the agreement cotiM be terminated at tlie election of the railway, company. If we are right, in this illustration, then certainly the court had then and .has now. no power to relieve the ice-company from the performance of the agreement according .to its terms, as clearly expressed. It.does not seem to us, in this, view of the case, we heed to consider many adjudicated cases.. None of them have the elements of fact found here, and are clearly distinguishable from this case. The parties deliberately made the agreement. .The court_ has- no power to change that contract or relieve either party from the performance thereof according to-its terms. It is not a question . of damages, but of compensation for services to, be rendered. If it, is a question of damages át all, then it should be said the damages were by the agreement stipulated by the parties. '

All concurred.

Judgment ordered for the plaintiff for the sum' of $2,640,' with interest-on $1,228 from June 1,1904 ; on $872 from,' June 1, 1905, and on $540.from.June 1, 1906, without costs of this submission to either party. ■ •  