Lexington & West Cambridge Railroad v. Fitchburg Railroad

75 Mass. 226

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

By the Court.

1. The term “ actual cost,” in the agreement declared on, means money actually paid out for extra trains. All the items of expense, which are objected to, would have been incurred whether the extra trains had been run or not, except the wear and tear of the defendant’s track ; and that was included in the thirty per cent, of tolls to be retained by the plaintiffs.

2. By the agreement sued upon the defendants took the entire charge of the freight and passenger business of the plaintiffs’ road, and agreed that the trains upon it and the general accommodation given to its business should be as favorable as if that road were actually owned by the defendants. The wood and coal which the auditor held to be included within this agreement were to be used on that part of the brick yard bordering on the plaintiffs’ road, and were in fact drawn over a side track, built pursuant to the agreement between the two corporationsv and in part within the location of the plaintiffs’ road. The auditor’s ruling on this point was in accordance with the award upon a similar claim for an earlier period, and we think it was correct.

3. The auditor has found that the special contract made in 1852 was terminated by mutual consent' in the spring of 1854. The first agreement thereupon revived, under which the defendants were entitled to but thirty per cent, of the net freight on bricks subsequently carried.

The rulings of the auditor upon all the points argued before us were correct. The exceptions to his rulings on other points have been either sustained or overruled by consent, and require no particular notice. Judgment accordingly.