
    * William P. Stanley v. The Cleveland, Columbus and Cincinnati Railroad Company, The Columbus and Xenia Railroad Company, and The Little Miami Railroad Company.
    Three railroad companies, of which one owned and operated a road extending from Cleveland to Columbus, and the other two owned and operated roads extending from Columbus to Cincinnati, made running arrangements by which the same cars and trains might pass over the whole line from Cleveland to Cincinnati. Afterward, the three companies, by joint contract, granted to A, for a limited term, the exclusive right to run sleeping-cars over their roads, “ for the purpose of accommodating passengers traveling on said roads, which said cars may be run each way, every night, over the line of said roads between Cleveland and Cincinnati, in connection with the night passenger express through trains between said cities.” Held, that the exclusive right thus granted to A, is limited to the through transportation upon both sections of the line, and does not prevent the companies owning the southern section of the line from furnishing and running other sleeping-cars, for the accommodation- of passengers carried over their section only, and not over any part of the northern section.
    Error to the court of common pleas of Cuyahoga county. Reserved in the district court.
    On May 26, 1863, William P. Stanley brought an action against the three railroad companies, in the court of common pleas of Cuyahoga county, to recover damages for an alleged breach of the following contract:
    “Memorandum of agreement, made this 5th day of June, a. d. 1858, by and between the Cleveland, Columbus and Cincinnati Railroad Company, the Columbus and Xenia Railroad Company, and the Little Miami Railroad Company, of the first part, and G. E. Herrick, Merrill Barlow, and Salem T. Wold, of the second part:
    “ The said parties of the first part hereby grant unto said parties of tlie second part the exclusive right and privilege to run one or more of ‘Woodruff’s patent couch and seat passenger cars,’ and any kind of sleeping-cars, on and ovqr tho railroads of said parties •of the first part, for the purpose of accommodating passengers traveling on said roads, which said cars may be run each way, every night, over tho line of said roads, between Cleveland and Cincinnati, in connection with tho night passenger express through trains between said cities.
    *“ Said parties of tho first part hereby agree to draw said [553 ■cars without charge to said parties of the second part; also, to keep ■the same swept, cleaned, and oiled, and to furnish fuel and lights for tho same; also, to assume and bo responsible to said parties of the second part, for all injuries and damages to said cars, except the natural and ordinary wear and decay of the same, and damage to •s&id cars arising from any defects in the same.
    “ Said parties of the first part agree that said parties of the second part shall have the right to charge, in addition to the usual fares charged by said parties of the first part, respectively, the sum of fifty cents for each and every passenger who shall occupy said cars, which said extra charge shall belong to, and be the property of, said parties of the second part.
    “ Said parties of the first part agree that said parties of the second part shall have the right to send one person on each of said cars, to take charge of the couches, fires, lights, and internal arrangements of tho same, and to collect said additional faro of tho passengers occupying the same, which said persons, so in charge of said cars, shall ride free of charge by said parties of tho first part; and it is understood and agreed that said parties of the first part shall not be held responsible to said persons in charge of said cars, for any damage or injury which said persons may sustain.
    “It is understood and hereby agreed that said parties of the first part, respectively, shall assume all risk and liability for injuries which may happen to passengers occupying said cars, or to persons in or about tho same (except to said persons in chatgeof said cars), in tho same manner, and to the same extent, as they would be held in like cases of injury to passengers occupying, or to persons in or about the cars belonging to said jjarties of tho first part.
    “It is also understood and hereby agreed that said parties of the first part shall be responsible for ali damages to, or loss of, property-in or about said cars, except when such damage or loss shall be ■occasioned by the act, or neglect, of the agents of said parties of the second part.
    *“ It is understood and hereby agreed that said cars shall [554 bo as well constructed, in every respect, as the cars now running on the roads of said parties of the first part, and that said cars shall be subject to the inspection of the proper officers of the said parties •of the first part, in same manner as their own cars are, and it shall bo the duty of the said parties of the first part to examine tho said cars, to determine whether the same are in proper order and condition to run, in the same manner and as often as they examine their own cars.
    " Said parties of the first part shall have the right to collect, of all passengers occupying said cars, the usual first-class fares.
    “The above agreements are to continue, and be in full force, for the term of three years, from the first day of July next; and it is-understood and agreed between said parties, that said parties of the second part, or their assigns, shall have the exclusive right of renewing and extending this contract, after said term of three years-shall have expired, until the first day of July, A. D. 1864, provided said parties of the first part desire the continuance of sleeping or couch cars on their roads, after said term of three years expires.
    (Signed,)
    “For the Cleveland, Columbus and Cincinnati Railroad Company,
    “E. S. Flint, Sup't.
    
    “For the Little Miami and Columbus and Xenia Railroad Company, J. Durand, Sup’t.
    
    “Gr. E. Herrick,
    “Merrill Barlow,
    “S. T. 'Weld.”
    On September 4, 1858, Wold assigned his interest in the contract, to Herrick and Barlow; and they, on April 11, 1859, assigned the' contract to Stanley, reserving all claims against the railroad companies for breaches of the contract prior to April 1, 1859.
    Issue was joined, by answer, as to the alleged breaches of the contract, and on the trial to the court, without the intervention of a jury, 555] the plaintiff offered testimony to show that *the defendants-had violated the contract in permitting the sleeping-cars of the Central Ohio Railroad Company, and of the Pittsburg, Columbus- and Cincinnati Railroad Company, to be run in the night passenger express train between Columbus and Cincinnati, and that plaintiff sustained damages thereby, as alleged in his petition. This testimony was objected to by the defendants, and ruled out by the court.
    At the request of the parties the court stated its findings specially,, and found as follows.
    
      First. That the defendants, prior to executing the contract set forth in the petition, made a joint running arrangement for their common benefit, which had the effect to so enlarge their powers as to authorize the defendants to make the joint contract upon which this suit is brought; and that such arrangement was known and assented to by at least two-thirds of the stockholders in each of the-companies.
    
      
      Second. That the contract sued upon is a joint contract, and was. duly executed by defendants ; that the consideration is sufficient that the same is assignable, and that the assignments were known-by the defendants, and no objection made by them.
    
      Third. That no testimony having been offered tending to show that sleeping-cars other than the plaintiff’s had been permitted, during the time named in the petition, to be run over the entire-line, or any portion thereof, other than the roads of the Little-Miami Eailroad Company and the Columbus and Xenia Eailroad Company, extending from Columbus to Cincinnati, the court, being-fully advised in the premises, finds that the plaintiff has suffered, no damage in the premises which is covered by the. contract sued. Upon in this case.
    The plaintiff moved for a new trial on the grounds :
    1. The finding of the court is against the weight of the evidence- and the law of the case.
    2. The court erred in rejecting the evidence offered by the-plaintiff.
    This motion was overruled, and judgment* rendered for defendants ; and the plaintiff excepted.
    To reverse this judgment, a petition in error was filed in the district court, and therein reserved for decision here.
    
      *S. J. Andrews and M. R. Keith, for plaintiff in error :
    The question presented on this record involves merely the interpretation of the contract.
    The plaintiff claims that it gives to him the exclusive right to-run sleeping-cars over the entire line, and every part of it, for the-term therein specified, and that such intent plainly appears upon the contract itself. The grant is of the exclusive right to run one- or more sleeping cars on and over the railroads of the defendants,. “ for the purpose of accommodating passengers traveling on said roads.”
    The language is general, evincing no intention to discriminate-between persons traveling on three of the roads and persons traveling on two of them; containing no words of restriction or limitation, but comprehending, as it seems to us, the whole line, and every part of the line — the through passengers and all other passengers.
    The limitation in the contract is not to the business or the passengers, but merely to the mode in which the grant shall be carried into effect, that is, by attaching the cars to the night passenger express through train between Cleveland and Cincinnati. This view of the contract is aided by reference to the last clause, which provides for its renewal after three years, “ provided that the parties of the first part desire a continuance of sleeping-cars on their roads;” showing that the enterprise was merely experimental, and that the agreement was intended to embrace the whole subject of supplying sleeping-cars on these roads.
    The contract is to be liberally interpreted in favor of the plaintiff. 9 Cushing, 45-56.
    The circumstances attendant upon making the contract show that our construction of it is the true one. The putting of sleeping-cars upon this line was an untried and doubtful experiment— so doubtful that these companies would not undertake it at thoir own hazard, or upon their own responsibility; and the exclusive .grant of the use of these roads for three years, for the transportation of all persons occupying sleeping-cars upon them, or either of them, was no more than a just and reasonable one for the expense and risk of building and running the sleeping-cars.
    557] *If it had boon understood that this exclusive grant related merely to through passengers, and that these roads reserved the right to put on the line, or permit others to put on the line, sleeping-cars other than those of the plaintiff, for the transportation of all the other passengers, and that they might not only do this, but might refuse to carry in the sleeping-cars of the plaintiff any other than through passengers; or if it had been understood that, under 'this exclusive grant, the Columbus and Xenia Eailroad Company .and the Little Miami Eailroad Company were loft at liberty to put, or permit others to put, upon the lino between Columbus and Cincinnati (a distance of more than half the entire line of the defendants) any number of sleeping-cars to be run in the night passenger express through train, 'and in direct competition with the sleeping-■cars of the assignors of the plaintiff, and that, too, without one word in the grant expressing or alluding to such a reservation or qualification, it is easy to see that the contract would never have '■■been made.
    The contract is not in restraint of trade. 3 Pick. 188. So far from it, it was an attempt on the part of the defendants to increase, -without risk or expense to themselves, the accommodation of the public. But if it were held to be a contract in restraint of trade,, it is a legal and valid contract tested by the rules established by this court. It is limited as to time. It is founded upon a sufficient consideration. It is reasonable and not oppressive.
    
      D Thew Wright, for defendants in error:
    The contract means that plaintiff has only the exclusive right to run sleeping-cars the whole distance between Cincinnati and Cleveland, “ which said ears maybe run each way every night over-the line of said road between Cleveland and Cincinnati, in connection with the night passenger express through trains between said cities;” and defendants therefore insist that allowing other sleeping-cars to run between Cincinnati and Columbus was no broach of the contract. Stanley has the exclusive right to rum sleeping-cars on the through train from Cincinnati to Cleveland, the whole distance. Del. & Rar. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. R. Co., 1 C. E. Green, 921, 362, 367.
    *Wo insist that the construction Stanley puts upon the con- [558-tract would make it ultra vires and illegal; and wo understand it to be well settled that when an agreement is susceptible of two constructions, one of which would make it illegal and void and the-other valid, the latter construction will be adopted.
    It may be competent for each of these roads to say that Mr.. Stanley may run his cars over their individual lines, but when he-says they go further and give him the right to run not only over-their own lines, but those of the other defendants, then we say they have no such power, and if such is the contract it is void.
    We claim that each road has said that he may run cars in this-through night train for -through business, and no other, so far as each road has the power to contract, which is for its own road' merely; and yet this suit is against the Cleveland and Columbus-road, because the Little Miami and Columbus and Xenia have-allowed cars to run on their lines.
    Noav, what power had the Cleveland and Columbus road to contract and say that the other defendants should not run just such-cars as they pleased? If they did so contract, the contract is simply void, for the Cleveland road had no such power. The Little Miami, if so disposed, could give the Cleveland road no such power. Great Northern Railway Co. v. Eastern Counties Railway Co., 12 E. L. & E. 224; Coe v. C. & P. R. R. Co., 10 Ohio St. 382; Chapman & Harkness v. R. R. Co., 6 Ohio St. 119, 136; Stevens v. Rut-land & B. R. R. Co., 1 Law Reg. 154; East Ang. R. R. Co. v. Eastern Counties Railway Co., 7 E. L. & Eq. 505; Johnson v. Shrewsbury and Birmingham R. R. Co., 19 E. L. & Eq. 584; Winch & Birkenhead v. Lancashire and Cheshire Junction Co., 13 E. L. & Eq. 506; C. P. & Junction R. R. v. I. & B. R. R., 5 McLean, 450; Sanford v. Catawissa R. R., 24 Penn. 378 ; Pickford v. Grand Junction R. R., 10 M. & W. 397; Parker v. Great Western Co., 49 E. C. L. 253.
    The contract, if construed as plaintiff claims, would be void on ground of public policy, because “ in restraint of trade.” Lange v. Werk, 2 Ohio St. 519 ; Thomas v. Miles, 3 Ohio St. 274; G-rasselli v. Lowdon, 11 Ohio St. 349; Chappell v. Brockway, 21 Wend. 157.
   *Scott, J.

The solution of the questions arising in this case depends upon the proper construction of the first stipulation or article of the agreement upon which suit was brought in the court below. That agreement purports to have been made between the defendants, of the first part, and other parties, of whom the plaintiff is the assignee, of the second part; and its first article or memorandum is as follows: “ The said parties of the first part hereby grant unto said parties of the second part, the exclusive right and privilege to run one or more of ‘Woodruff’s patent couch .and seat passenger cars,’ and any kind of sleeping-cars, bn and over the railroads of said parties of the first part, for the purpose of ac•commodating passengers traveling on said roads, which said cars may bo run each way, every night, over the line of said roads, between Cleveland and Cincinnati, in connection with the night passenger express through train between said cities.”

The plaintiff admits that during the term provided for by the contract, no sleeping cars other than his own were at any time used on that portion of the line of said roads which belongs to the Cleveland, Columbus and Cincinnati Railroad Company, and which -extends from Cleveland to Columbus. But he claims to recover, as upon a joint contract, against all the defendants, because sleopingcars other than his were permitted to be used and run over the southern portion of the line, owned by the two other defendants, and extending from Columbus to Cincinnati. The court below hold that such use of sleeping-cars other than the plaintiff's, upon .a portion of the line only, for the accommodation of passengers supon other lines of road, not passing to or through Cleveland, -would not constitute a breach of the contract. Was this construction of the contract erroneous? Was it the intention of the parties to prevent each of the defendants from forming running connections with other roads, and providing such sleeping accommodations thereon as public convenience might require ? •

A train leaving Cincinnati for the east, on the Little Miami road, though drawn by a single locomotive, may consist of cars intended to be transferred to other roads at various points on its line. A portion of the ears may be ^intended for Marietta, to be [560 transferred to that road at Loveland; another portion may be filled with passengers for Wheeling or Pittsburg, each to be transferred at Columbus to the roads leading to those points; whilst another portion of the same train may be intended for transfer at Columbus to the Cleveland road, and properly constitute “ the night passenger express through train between Cincinnati and Cleveland,” described in the contract. If no sleeping-cars could be attached to any portion of the train intended for those other routes, and not to pass •over any part of the Cleveland road, it must be readily seen that the convenience of passengers, which was the avowed object of the •contract, would be seriously limited and curtailed ; and that, too, without a corresponding benefit to the plaintiff; for very few passengers bound for Wheeling or Pittsburg, and expecting to reach Columbus about midnight, would take a sleeping-car which they must leave at that unseasonable hour. A construction which would thus make the contract militate against the convenience and comfort of the traveling public should not be given to it, unless it can not be fairly construed otherwise.

By the terms of the agreement, the plaintiff’s sleeping-cars were to be run- over the railroads of the defendants, for the purpose of accommodating passengers traveling on said roads ” (without adding the words “ or either of them"); and they were to bo run each way, every night, over the line of said roads between Cleveland and Cin-cinnati.” And they were, further, to be run “in connection with the night passenger express through trains between said cities." This language contemplates the roads of the three defendants as contitutiag one continuous line, extending from Cleveland to Cincinnati; and the arrangements between the defendants had doubtless made it such, practically, as to through passengers, though neither road had .-any concern with travel not passing over its portion of the line. 'The transit over the whole line, from its length, we may reasonably suppose, would occupy the most, if not the whole, of one night;; and little, if any, patronage could be expected for the sleeping-cars, except from those who would be, substantially, through passengers.

The contract was, no doubt, intended to secure to the plaintiff’s 561] ^assignors the exclusive right to furnish sleeping-cars for the accommodation of this through travel. But it is by no means clear that it was intended to prohibit each of the defendants from furnishing similar accommodations, through other agencies, to passengers upon other lines of railroad, though connected by running-arrangements with this night express train of defendants, so as to-be carried thereby over some part of the line between Cleveland and Cincinnati.

An act of the legislature of New Jersey relative to certain canal and railroad transportation companies, prohibited, during the continuance of their charters, the construction of any other railroad or railroads in that state, without, the consent of said companies,, which should be intended or used for the transportation of passengers or merchandise between the cities of Now York and Philadelphia, or to compete in business with the railroad authorized by that act; and it was held by the court of chancery of that state-that the grant of this exclusive privilege operated only to protect the through business, from city to city, and not between intermediate places, and over any or every part of the route between the said-cities. 1 C. E. Green, 321. This case, referred to by counsel for-defendants, is, we think, somewhat similar to the present. It istruo, that was the case of a grant, which, as against the public, would bo construed strictly. But the same principle would require doubtful language in a contract, not to bo construed adversely to-the public interests or convenience.

No arrangements are shown to have been made among the defendants which gave the directory of the northern section of the-lino any control over such transportation as concerned the southern alone, or vice versa. If each of the defendants became bound, by this contract, in respect to passengers not transported over any part of its own section of the line, then in respect to such transportation each defendant became a surety or guarantor for its co-defendants. Its power to make such a contract of suretyship or-guaranty is, to say the least, questionable.

562] *By the' 24th section of the general railroad act of 1852,, each of the defendants was authorized to make running arrangements with the others in respect to traved or freight passing over the whole line, or from one section of it to the other. But a contract of guaranty by one of the defendants in respect to business on sections of the line other than its own, in which it had no interest and over which it could exercise no control, is quite a different affair. The plaintiff neither claimed in his petition, nor offered to prove upon the trial, that any sleeping-cars other than his own were permitted to be used, at any time during the continuance of the contract, upon any part of the northern section of the line; yet he claimed a joint judgment against all the defendants. His claim, as to the joint character of the contract, was sustained by the court below, and, we are inclined to think, properly sustained. And this feature of the contract is not to be lost sight of, in giving a reasonable construction to its stipulations. A construction which would render a defendant liable for breaches in which it had no agency, no interest, and no power of prevention, is not.to be favored. We can not reasonably presume, without language clearly to that effect, that such was the intention of the parties; but should rather presume that they intended to contract only in reference to through business, in which all had a common interest. A majority of the court think that the terms of the contract, considered with reference to the subject-matter, warrant this construction.

Judgment affirmed.

Day, C. J., and White, J., concurred.

Brinkerhoff and Welch, JJ., did not concur  