Opinion
41994.
ARGUED MAY 2, 1966.
DECIDED JUNE 10, 1966.
Action on contract. Morgan Superior Court. Before Judge Carpenter.
Edenfield, Heyman Sizemore, W. J. Tipton, Weldon C. Boyd, Robert G. Young, for appellants.
Harris, Russell Watkins, John B. Miller, for appellee.
1. Under the circumstances alleged in the petition and construing together the two contracts set forth in the petition and construing the two contracts in the light of each other, the conclusion is demanded that the predecessor of defendant Central of Georgia Railway Company did not undertake in either contract to maintain the structure which it agreed to build (as specified by another railroad) in consideration of the right to cross under the other railroad, in such a manner as to render it capable of sustaining heavier engines, cars, etc., of the other railroad as its future growth and development might demand, but agreed only to maintain it in such a way as to keep it in as good condition as it was when built. The first count did not set forth a cause of action for breach of contract.
2. Since the petition showed that if any cause of action existed it was for a breach of an express contract, the second count did not set forth a cause of action for a breach of a common law duty.
ARGUED MAY 2, 1966 — DECIDED JUNE 10, 1966.
The petition of Louisville Nashville Railroad Company, a Kentucky corporation, and Atlantic Coast Line Railroad Company, a Virginia corporation, lessees of Georgia Railroad Banking Company, operating under the trade name of Georgia Railroad, shows that they sued the Central of Georgia Railway Company in 2 counts. The first count sought to recover damages for the breach of a contract between the defendant and the Georgia Railroad Banking Company. In particular, the first count seeks to recover for a breach of the following provision in said contract dated December 20, 1901. The provision referred to being Par. No. 5 in said contract, which is as follows: "5. The Georgia Company and the Lessee Company will permit the Central Company to maintain and use for the track of its railroad running between Macon and Athens an undergrade crossing under the track and right of way of the Georgia Railroad southwest of Madison, as the same is now erected and maintained; the Central Company to maintain permanently a substantial structure of a permanent character, with abutments of granite and a superstructure (except ties) of steel or iron. The superstructure and abutments will be maintained in good condition by the Central Company at its own expense, and if not so maintained, the Georgia Company and the Lessee Company shall be at liberty to do the necessary work thereon and recover the cost thereof from the Central Company." The reasons stated as constituting a breach of the contract are stated in paragraphs 8 through 19 of the petition, which are as follows: "8. That said crossing was made and the defendant constructed said bridge structure, which is located in this county and in the City of Madison, Georgia. 9. That the structure constructed and maintained by the defendant pursuant to said agreement became obsolete and inadequate for the normal requirements of freight traffic on the petitioners' railroad. 10. That loaded freight cars tendered to the Georgia Railroad in interchange by other railroads for transportation over its lines became progressively heavier in gross weight. 11. That an increasing number of cars being offered in interchange, as aforesaid, had and have a capacity of 100 tons. The maximum gross weight of such cars when loaded is 263,000 pounds. 12. That in 1963, said bridge was the lightest structure on the main line of the Georgia Railroad, and it was necessary to restrict cars operating over the same in normal train service to a maximum gross weight of 220,000 pounds, without special handling. 13. That in 1963, one or more cars were being offered in interchange to Georgia Railroad practically every day which, due to the inadequate capacity of said bridge structure, it was necessary to refuse to transport the same or to make special arrangements and operate over said structure at reduced speed. 14. That even when such special arrangements were made said structure was not safe and adequate to handle loads of over 240,000 gross pounds per car. 15. That on November 19, 1963, the petitioners' General Manager, J. C. Mixon, notified the President of the defendant, Mr. W. E. Dillard, that said structure was inadequate and would require replacement by a heavier structure. That a copy of said letter is attached hereto, marked Exhibit `B', and made a part of this petition. 16. That it was the intent of the parties, which is manifest in said agreement, that the defendant would provide a structure which was adequate for the reasonable requirements and needs of the petitioners in the operation of their railroad, and that when said structure became obsolete because of the load bearing requirements of modern rolling stock and lading, such changes would be made by the defendant to meet such requirements. 17. That the defendant refused to make any change or improvement in such structure as requested by petitioners and as required by said contract, whereupon the petitioners did the necessary work at an expense of $30,345.38, an itemized statement of which is attached hereto, marked Exhibit `C', and made a part of this petition. 18. That said expense was reasonable and necessary to make said structure adequate for the requirements of normal railroad service, as aforesaid. 19. That the petitioners demanded that the defendant reimburse them for such expense, which the defendant refused to do, which refusal also constituted a breach of said contract." The sum sued for in both counts was $30,345.38. Attached to the petition and made a part thereof is a copy of a contract between the Georgia Railroad Company and the Covington Macon Railroad Company, to which the Central of Georgia is a successor, which is as follows: "Augusta, Ga., April 21, 1888. Memoranda of Agreement entered into between the Georgia Railroad Company and the Covington and Macon Railroad Company. The Covington and Macon Railroad will cross the Georgia Railroad above or below grade. If an overhead crossing is adopted the clearance must not be less than twenty feet. No bents supporting the bridge shall be within ten feet of center line of Georgia Road. If the Covington and Macon Road crosses the Georgia Railroad below grade the structure must be of permanent character, viz.; a granite viaduct or if the distance between the grade lines of the two roads will not permit this character of work then the abutments of the bridge must be of granite and the superstructure of iron. All to be done to the satisfaction of the Georgia Railroad Company. If the foregoing plan of crossing is agreed to, the Georgia Railroad Company will grant permission to the Covington and Macon Railroad Company to use its main line track between the Covington and Macon siding about one mile west of Madison to the siding about one and one-half miles east of Madison upon the following terms: The Covington and Macon Railroad Company trains while on Georgia rails must be under control of Georgia Railroad management. The engine must be in immediate charge of a Georgia Railroad engineer. The switches east and west of Madison must be guarded by men selected by the Georgia Railroad Company. The wages of engineer and watchmen at switches to be paid by Covington and Macon Railroad Company. The rental for use of Georgia main line track to be the same rate per mile that the Georgia Railroad pays the Central Railroad for the use of its track between Macon and Junction about four miles from Macon. The Covington and Macon Railroad Company agrees to complete its own line between the sidings above referred to within ninety days. Upon completion of said line the use of Georgia main line by Covington and Macon to be discontinued. The foregoing plan contemplates the establishment of the Covington and Macon Depot on the old Porter lot opposite the Georgia Railroad depot. The Covington and Macon Railroad to furnish the necessary side tracks on which the delivery of interchanged freights will be made. The Georgia Railroad Company will not object to the use of its right of way from a point in front of New Cemetery and extending thence to the point east of the depot where the track of the Covington and Macon Road leaves the Georgia Railroad. The management of the Georgia Railroad will recommend that this grant be confirmed by the Georgia Railroad and Banking Company provided that the track of the Covington and Macon Railroad shall not approach the Georgia Road nearer than fifty feet measuring from center to center of main line tracks and that the intervening space from the cemetery to the eastern and end of the Covington and Macon Depot lot, viz.: (the old Porter lot) be granted the Georgia Railroad to be used for side tracks. (Signed) The Georgia Railroad Company, by, J. W. Green, General Manager; The Covington and Macon Railroad Co., by, B. W. Frobel, General Manager; Witness, W. S. Brand. Annulled by agreement of 12/20/1901." The 1901 contract upon which the first count is based contains the following provision: "2. This contract is made in pursuance of and in modification of a certain memorandum of agreement dated April 21, 1888, between the Louisville Nashville Railroad Company and the Central Railroad Banking Company of Georgia, then lessees of the Georgia Railroad, party of the first part, and the Covington Macon Railroad Company, to which the Central of Georgia Railway Company is now successor in title, party of the second part. This contract is intended to be a full compliance with the said agreement of April 21, 1888, which is hereby annulled except in so far as it is to be carried out by the terms of this agreement." There are other parts of the 1901 contract with reference to other rights stipulated between the parties which do not concern the provision that forms the basis of the first count of this petition.
The second count of this petition seeks recovery of the same amount of money for a breach by the Central of Georgia Railway Company of its alleged common law duty to so maintain the structure provided for in the said contract as to make it adequate for the reasonable requirements and needs of the petitioners in the operation of their railroad. The trial court sustained the general demurrers of the Central of Georgia Railway Company to counts 1 and 2 of the petition and dismissed the action. The appeal is from this judgment.
1. In the consideration of this case it seems to us that the conclusion to be reached is dictated by the provisions of Code § 20-702, which are as follows: "The cardinal rule of construction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction." It seems to us that in arriving at the intention of the parties both of the contracts with reference to the maintenance of the structure must be considered. It is not alleged in the petition that the Central Railroad Banking Company of Georgia did not erect the structure under the 1888 contract to the satisfaction of the parties plaintiff and according to their specifications. It was this specific and identified structure which the contract agreed to maintain. If there was lack of foresight in providing a structure to accommodate the growing needs of the plaintiffs and to provide therefor it was not the fault of the defendant's predecessor. Indeed it is clear from par. 5 of the 1901 contract that the parties intended that the provisions as to maintenance were referable to the undergrade crossing as the same "is now erected and maintained." This reference cannot be construed as merely indicating the location of the crossing. Par. 2 of the 1901 contract seems to remove all doubt as to the intention of the parties as to what structure was to be maintained. In fact the agreement to maintain, in the 1888 contract, was specifically carried forward in the 1901 contract. Par. 2 concludes with: "This contract is intended to be a full compliance with the said agreement of April 21, 1888, which is hereby annulled except in so far as it is to be carried out by the terms of this agreement." This provision is a conclusive acknowledgement that the structure was erected as directed by the plaintiff and that it would be maintained according to the provision of both contracts, which are clearly to the effect that the structure as erected would be maintained and do not provide for changes in the structure to meet the growing needs of the plaintiff's railroad. The court did not err in sustaining the general demurrer to count 1 of the petition.
2. Count 2 of the petition shows that whatever rights the plaintiffs had with reference to the maintenance of the structure were provided for in a contract or contracts between the parties. In such circumstance the parties are relegated to the contract or contracts in the absence of an allegation that the contracts are for some reason void or unenforceable for reasons of public policy.
The court did not err in sustaining the general demurrer to count 2 of the petition.
Judgments affirmed. Frankum and Pannell, JJ., concur.