Wiggins Ferry Co. v. Chicago & Alton Railroad

73 Mo. 389

• Court: Supreme Court of Missouri
• Decided: April 15, 1881
• Status: Published

Opinion

Norton, J.

Upon the trial of this cause in the circuit court pi tintiff obtained judgment for the sum of $107,-255.40, from which defendant appealed to the St. Louis court of appeals, where the said judgment was reversed, from which plaintiff has appealed to this court.

The action of plaintiff is for the recovery of damages for alleged breaches of a contract entered into between plaintiff and the Alton & St. Louis Railroad Company on the 28th day of April, 1864, which contract, on the day it was executed, was assigned to the Chicago & Alton Railroad Company, the defendant in this suit. The questions decisive of the case and presented by the record for our determination are : 1. Is the defendant, as assignee of the contract sued upon, liable to an action by plaintiff for any breach of it? 2. Is the contract ultra vires, condemneu by public policy, or in restraint of trade ? 3. Does the contract obligate plaintiff' to transfer passengers and freight brought to its boats loaded in cars, as well as passengers and freight loaded in omnibuses, wagons, drays, etc. ? 4. Was error committed in not receiving as evidence certain way-bills and manifests offered by defendant? 5. Did the court err in overruling defendant’s exceptions to the report of the referee or in refusing to set it aside ? 6. Was the right rule applied in the measurement of damages?

1. liability op asSIGNEEi OP ACONtract.

It is claimed by counsel that, as plaintiff' and the Alton & St. Louis Railroad Company were the only parties executing the contract sued upon, no liability ° X ° attached to defendant, the Chicago & Alton Railroad Company, as the assignee of the contract, upon the covenants therein contained, because such covenants do not run with the land, but are simply collateral thereto. If nothing else appeared but the fact that the Alton & St. Louis Railroad Company, which acquired rights in the lands mentioned in the contract, had assigned the contract to defendant, the rule invoked by counsel might be held to apply; but in the light of other facts disclosed by the record it is inoperative in this case.

From an averment made in the petition, and not denied by the answer, the fact appears that the contract in question was entered into by the Alton & St. Louis Railroad Company at the special request of the Chicago & Alton Railroad with an agreement then perfected between the said two companies, that it should be assigned to defendant. The fact also appears on the face of the contract that it provides in express terms that the “Alton & St. Louis Railroad Company shall have the right to transfer and assign this agreement to the Chicago & Alton Railroad Company, in which event all the covenants, stipulations and agreements herein above contained, shall be as binding on the Chicago & Alton Railroad Company as the same are now on the Alton & St. Louis Railroad Company.” It further appears that in pursuance of the above stipulation the contract was assigned to defendant on the same day it was executed, which assignment is attached to the contract, and expressly provides that defendant was to take it “subject, nevertheless, _ to the rents and covenants in said agreement contained.” The acceptance by said defendant of said contract under this assignment, which is made in conformity with the terms and on the very condition on which plaintiff assented it might be made, fixes the liability of defendant. This has been expressly decided in the case of Heim v. Vogel, 69 Mo. 529, where it was held that if B, as grantee, accepts a deed from A containing a recital that the property was conveyed subject to a deed of trust made to secure a'debt to C, and that B assumed or agreed to pay the same, the effect of such recital was to make the debt due to C the debt of B, and render B personally liable there'for; that by the acceptance of the deed a duty is imposed upon B, and the law implies a promise that he will perform it, on which, in case of failure, assumpsit will lie. To the cases cited in the opinion in the above case, sus- ' taining the principle announced, the following may be added: Aikin v. The Albany R. R., 26 Barb. 289; Patchin v. Swift, 21 Vt. 298; Attix v. Pelan, 5 Clark (Iowa) 336; Burton v. Wells, 30 Miss. 689. The liability of the defendant, the Chicago & Alton Railroad Company, being thus established, for any failure to comply with the stipulations of the contract, we will speák of it, in what is hereafter said, as a party to it.

2. railroad com-contract wiufconnectmg imes.

Is the contract ultra vires, condemned by public policy or in restraint of trade? The solution of this question in-v°lves a consideration of the powers and relations of the two corporations making the contract, as well as a construction of the contract to ascertain the obligations it imposed on the respective parties. The fact that the Chicago & Alton Railroad Company, by virtue of its charter and various acts of the legislature of the state of Illinois, (which it is unnecessary here to recite,) was invested with rights and charged with the duties of a common carrier in the carriage of persons and property to, from and between its terminal points, viz : Chicago and a point on Bloody Island, on the Illinois shore of the Mississippi river, opposite the city of St. Louis, is not controverted. Without reviewing the various acts of the legislatures of the states of Illinois and Missouri relating to the incorporation of the Wiggins Ferry Company, it will be sufficient to say that they gave it the privilege of operating a ferry over the Mississippi river between the city of St. Louis and the Illinois shore of said river opposite said city, the said company being restricted to keeping a ferry or ferries at any point or points on the lands owned by the company on the Illinois -shore, with the right to remove the same from place to place on said lands as necessity or convenience might require.

Before the railroad company could exercise the rights conferred or discharge the duties imposed upon it by its charter, it was indispensably necessary for it to acquire, either by condemnation or contract, a right of way for its tracks and grounds for a depot and other purposes incident to its business; and to accomplish these ends it had the power to contract with the owner of the land which it desired to appropriate to such uses. The Wiggins Ferry Company owned the desired lands, and under its charter had the power to dispose of them by contract, and also to contract for the ferrying of persons and property going to or coming from St. Louis over the Mississippi river. The contract in suit, which grew out of these relations existing between the parties to it, declares that the object sought to be aecomplished'by it and prompting its execution, were two, viz: First, To secure permanently to the Wiggins Ferry Company “ the ferrying business between the Illinois and the Missouri shore opposite the city of St. Louis of all the freights and passengers carried or to be carried by the Alton & St. Louis Railroad Company, and the further sum of $2,500 per annum to be paid by the said railroad company.” Second, To secure to the Alton & St. Louis Railroad Company “ proper facilities for depot grounds for the operation and doing of the business of their road at a western terminus on the Mississippi river opposite to the city of St. Louis.” That both plaintiff and defendant had the right to secure to themselves respectively, by contract, these objects, we think is clear; and we cannot, therefore, declare from anything appearing on the face of the contract that it is ultra vires, but must hold it to be valid, unless it is shown, either by the contract itself or by extrinsic evidence, that they so contracted in securing these objects as to impose obligations on themselves which are either against public policy, or in restraint of trade, or which involve an abandonment of some duty which is due the public from the party obligated, in which event it would be our duty to declare it void.

None of these objections apply to the provisions of the contract transferring to defendant rights in lands of the' Wiggins Eerry Company, whereby defendant acquired interests therein which enabled it fully and completely to accomplish the object it had in view in entering into the contract to rent depot grounds on Bloody Island and a right of way from the east end of said depot grounds northwardly toward the town of Brooklyn; nor do they apply to the obligation of plaintiff, whereby it bound the Wiggins Eerry Company “to furnish and maintain good and convenient wharf boats and steam ferry boats to do, with promptness and dispatch, all the ferrying required for the transit of passengers and freight coming from or going to said railroad (or tne assignee hereinafter mentioned) over the river.”

3. Sco?trTot op ml m^EpEkhryEcom1 chÍoaoo &Dalton railraoad oompa-

When the fact is considered that defendant, with one terminus of its road at Chicago, and the other at a point on ^ie Illinois shore of the Mississippi river opposite the city of St. Louis, was necessarily dependent, for the successful operation ^.g roa(j an¿ business, on the facilities which it might afford for the passage over said river of persons and property destined either for St. Louis or points beyond —or coming to it from St. Louis destined either to Chicago or to points intermediate and beyond, it was in the interest not only of defendant, but of the public, that it should secure to itself these facilities. That these facilities were secured to defendant by the contract in question cannot be controverted, and that it had the power to make the contract by which it secured them is shown by Hutchinson on Carriers, section 145, and following sections, and by the case of Wheeler v. San Francisco R. R. Co., 31 Cal. 46, where the authorities sustaining the power are extensively cited.

4. a contract held NOT VOID AS against public stbaintop trade

But it is insisted that defendant, in securing them, obligated itself to do what is forbidden by public policy, and what is in restraint of trade, by agreeing i .-i/V ° that it “ will always employ the said ferry to transport across said river all persons and property which may be taken across, the said river either way to or from the Illinois shore, either for the purpose of being transported on said railroad or having been brought to the said river Mississippi, upon said railroad, so that said ferry company * * shall have the profits of the transportation of all such passengers, persons and property taken across said river either way by the said railroad company, and that no other than the Wiggins Ferry shall ever, at any time, be employed by the said party of the second part, or the assignee herein mentioned, to cross any passengers or freights coming or going on said road.” Keeping in view the fact expressed in the contract that one object in making it was to secure to plaintiff “ the ferrying business between the Illinois shore and the Missouri shore opposite St. Louis of all passengers and freight carried, or to be carried,” by defendant, and that the above stipulations were inserted to carry out this object, and construing the contract in its entirety, giving to the words employed therein their usual signification, without twisting them from their natural meaning in the relation they bear to the object referred to, we are of opinion that defendant bound itself to give to plaintiff for ferrying over the Mississippi river all passengers and freight brought by it to the Illinois shore opposite the city of St. Louis to be crossed over to said city, and all passengers and freight taken from St. Louis for carriage by defendant on its road northward.

If the design of the contracting parties had been to limit the obligation of defendant to give to plaintiff for ferrying, and limit the right of plaintiff to have for ferrying only such freight as might go or come over Bloody Island, it should have been so expressed, and it could have been unmistakably expressed by the simple addition of the words “ Bloody Island” to the words “river and Illinois shore,” where they occur in the above recited clauses of the contract. This was not done. No words restricting the obligation of defendant to furnish freights for ferrying, or restricting plaintiff’s obligation to ferry only such freights as might go or- come to the Illinois shore over Bloody Island, are to be found in the contract, and we are not authorized by any rule to interpolate or insert in the contract words which the contracting parties themselves not only did not put there, but which, as we think, were intentionally omitted. The Wiggins Eerry Company, by virtue of its charter, and independent of the contract, had the exclusive right to ferry freights across the Mississippi river to and from Bloody Island, and the construction contended for by counsel, that the contract secured to plaintiff the right to demand of defendant only such freight^ it might bring to a point on Bloody Island, would involve the unreasonable conclusion that-plaintiff was willing to transfer, and in fact did transfer to defendant property rights estimated by one witness to be of the value of $130,000, to secure to itself a right which it already had and of which defendant could not deprive it.

If the contract is to be viewed in the light of the circumstances surrounding the parties at the time of its execution, the construction we have given it is fortified and sustained. It is shown by the evidence that at the time it was entered into there were three ferry companies doing business under their respective charters from the Illinois shore opposite St. Louis, viz : The St. Clair County Eerry, south, and the Madison County Eerry, north of the Wiggins Eerry Company. According to the evidence of Mr. Bisdom, the Wiggins Eerry Company had a frontage on the Illinois shore of said liver opposite St. Louis, of about two and a half miles; this frontage included not only Bloody Island, but also extended south of it and north of it up -to or near the line dividing the counties of St. Clair and Madison, and within 3,200 feet, or about five-eighths of a mile, of the Madison County Eerry at the town of Yenice. The Wiggins Eerry Company had, by its charter, the exclusive privilege of maintaining and operating a ferry to and from any point or points on this frontage, and the other two the same right confined to the frontage on said shore respectively owned by them. On the other hand defendant had the right to give to either of these companies the ferrying across said river brought by it to the Illinois shore. If it brought its freight to said shore at any point embraced within the said frontage of plaintiff, if passed over the river from such point, it could only be done by plaintiff, and if brought to said shore at any point embraced within the limits of either the St. Clair County Eerry or Madison County Ferry, if passed over the river from such point, it could only be done by the company in whose limits such point was embraced. In this condition of things there was no possible motive or inducement for the Wiggins Eerry Company to enter into a contract by which it would get nothing more than it already had a right to. The right of said company to ferry freight from so much of the Illinois shore as was included in its frontage having already been secured to it by its charter, its evident purpose was to obligate defendant to bring to such frontage all freight carried by it requiring ferry transportation across the said river opposite St. Louis, and that such was the extent of the obligation assumed by defendant, we have already seen.

5- avoidance O f AG^iN-if/puBLic policy.

If, as argued by counsel for plaintiff and conceded by counsel for defendant, the Chicago & Alton Railroad ComParY was authorized by its charter to carry passengers and freight to St. Louis, and empowered to employ and use boats for that purpose, it was its duty to do so, and the public had a right to demand of defendant the performance of this duty in such manner as not to hamper trade, but so as to secure the transit over the river with facility and dispatch of all persons and property which either trade or the public interest might demand. This much, and no more, the public had a right to demand, and if it was met by the contract in question it cannot be held to be in contravention of public interest, because the public would get under it all that it had a right to. It was no concern of the public what particular ferry should be employed by defendant as an instrumentality for the prompt passage over the river of all freight and passengers requiring such transit, provided the one employed was in all respects sufficient to accomplish such purpose without imposing any additional burdens on the shipper. The obligation of plaintiff required it to “ furnish and maintain wharf and steam ferry boats sufficient to do with promptness and dispatch all the ferrying of passengers and freight requiring it.” . What more than this could be demanded ? What right of the public was disregarded by defendant agreeing always to employ a company which it had thus obligated?

If on the other hand the southern terminus of defendant’s road was on Bloody Island, it owed no duty to the public to carry freight or passengers beyond such terminus, and in making the contract in question it neither abandoned norviolated any duty to the public, because it owed it none. While defendant could not be compelled to carry beyond the terminus of its line, it nevertheless might contract, if it chose to do it, for the carriage of freight beyond such terminus, and for this purpose make a valid contract with a connecting carrier, and if it elected to make such contract it would be bound by it. Hutchinson on Carriers, §§ 147, 151, and authorities there cited; lb., § 317; Paradine v. Jane, Aleyn Rep., 26, 27.

The only element of restraint of trade to be found in the obligation of defendant, is that it will never employ any other ferry but the Wiggins Ferry to transport freight from the Illinois shore, opposite the city of St. Louis, or ■sent to it from said city. This restriction is not general as to space, but only partial and special, and it is only when a contract is granted for general restraint of trade that it will be held illegal and void; but it is otherwise if the restraint be partial and reasonable. Bowser v. Bliss, 7 Blackf. 344; Peltz et al. v. Eichele, 62 Mo. 171; Leake on Con., pp. 735, 736. The space in which the restriction is to operate is limited to the Illinois shore opposite the city of St. Louis, and is only a partial restraint in that space, the restriction being not that defendant will not employ any ferry at all, but that it will only employ that of plaintiff. We can not say from anything appearing in the contract that such limitation is unreasonable, and it is. not, therefore, obnoxious to the rale.

6. TRANSPORTATION contracts: improvementsin methods of transportatlon; parties i>ouud to adopt

While holding the contract, as we have construed it, to be valid, yet if it is shown by extrinsic evidence to be in conflict with public policy, to that extent it , - . , . . . „ ,. must yield and give way, and it is for the . . , , defendant alarming it to be so, to show it. 0 flhe salutary rule that a contract against public policy or interest will not be enforced, was adopted to conserve the best interests of society and the state, and a party who invokes it as a shield behind which to hide and protect himself against the damages attachable to the breach of a contract, especially when such party is in the full and free enjoyment of all the fruits of the contract, must make it clearly manifest to the mind of the court that the obligations imposed by it are condemned by the rule. In the case of Bryant v. Fairfield, 51 Me. 146, it was held that it is not for a party who retains the consideration of the contract, to invoke the rule that the contract is against the policy of the law. While not willing to go to the extent of that case and say that a party in the enjoyment of all he was to get in consideration of a promise made by him to another, should not be allowed, when sued for a breach of such promise, to plead that it was against public policy, we may safely say, without infringing upon any rule of common honesty, justice or right, that to make such plea effectual, he should restore, or be required to restore, all that he received as a consideration for the promise which he thus seeks to avoid. The fact that defendant entered into the possession of the lands it was to get under the contract immediately after its execution, laid its track, built its depot, and has ever since had the full and uninterrupted enjoyment of the same is conceded ; the fact that from 1864 up to May or June, 1869, no discovery had been made that the contract in question was against public policy, and that during that time defendant gave to plaintiff' for ferrying all passengers and freight going to or coming from St. Louis, on or for its road, is also conceded.

The fact that since that time alL freight carried by defendant loaded in its cars and transferred without breaking bulk, was transferred, not by the Wiggins, but by the Madison County Eerry, is also conceded, and it is this ear transfer so made of which plaintiff' complains, and which it sets up as a breach of defendant’s contract. But the fact that such transfer constituted a breach of the contract is denied by defendant, who claims, first, that the contract did not embrace car transfer, that such method of transfer was not used by plaintiff at the time it was entered into, and was hot, therefore, contemplated by the parties; second, that if embraced, the public interest demanded car transfer at the Madison County Eerry, which could not be met by the Wiggins Eerry, and that, in this conflict between the obligation of defendant and public interest, the obligation yields and ceases to be enforceable.

7--•

While it is true that plaintiff and defendant may be presumed to have contracted with reference to the condition of things existing at the time the contract was made, it is equally true that they must be presumed to have contracted with reference to the fact that if, in the future, other methods than those then in use, for the transfer of passengers and freight from the rail terminus of defendant’s.road to plaintiff’s boats, and improved methods in the construction of boats for the reception of such freight should be invented, and proved by trial to be more efficacious as to cheapness, safety and dispatch than those then in use, it would be the duty of plaintiff to adopt them upon the requirement of defendant. Hutchinson on Carriers, § 529; Meier v. Penn. R. R. Co., 64 Pa. St. 225; s. c., 3 Am. Rep. 581. We think it cannot reasonably be claimed that if an improved method had been invented in applying steam power in propelling ferry boats, whereby the transportation of freight and persons would have been cheapened and facilitated, defendant, under the contract, could not have demanded its adoption, and that it would not have been the duty of plaintiff to have complied with it. The obligation assumed by plaintiff to ferry all freight requiring to be ferried is unrestricted and broad enough to cover freight brought on to its boats loaded in cars propelled by steam, as well as freight brought to them loaded in wagons drawn by horses and mules. If the ferrying of freight loaded in cars without breaking bulk had been demanded by defendant because it was cheaper, safer and more expeditious than transfer by parcels, it would have been the duty of plaintiff to have provided boats to meet the demand. If the defendant, in the interest of the public, and its own, desired to avail itself of such improved method, it should have signified its desire to plaintiff' and afforded it an opportunity to furnish the proper facilities by conforming its boats to such method.

8 -: fraud,

If defendant owed a charter duty only to the public to provide means of transit across the Mississippi, and the evidence in the case showed that the public interest could not have been as well served by car transfer at the Wiggins as at the Madison County Ferry, an excuse might be found for defendant’s failure to make such demand, and a reason offered why its obligation to defendant should not be enforced. We think the evidence fails to show this. It shows that defendant, on the 9th day of March, 1866, entered into a written-agreement with the-Madison County Ferry, which had its landing at the town of Yenice about five-eighths of a mile from the most northern point where the Wiggins Ferry had a right to-land, and about two miles from the Wiggins Ferry landing on Bloody Island, in which agreement defendant secured to itself depot grounds, right of way for switching tracks and right to build a grain elevator on the land acquired; it also secured an obligation from the Madison County Ferry at all times to keep and maintain ferry boats sufficient to accommodate all the business and traffic of defendant’s road which of necessity should be done by ferry boats-at that point, and to do -such ferrying at prices not to-exceed those charged for similar service by other ferry companies engaged in like business at ornear the premises-therein conveyed. Defendant bound itself to use the property conveyed for the uses therein expressed, also to establish a local station at the town of Yenice, a small village,, whose metropolitan proportions are not shown, situated about two miles north of the rail terminus of defendant’s road at East St. Louis, and from time to time to erect at said station such buildings for freight and passenger traffic as might be necessary for the accommodation of business at that point. Said agreement also contains the following-stipulations :

“ And the said party of the second part (the railroad company) hereby further covenants and agrees to and with said first party that it, the said second party, will not at any time hereafter establish, or attempt to establish, for its-own use, or aid or assist in the establishment or maintenance of any other ferry company intending to compete with the party of the first part for the ferrying business to-be done from the lands of the first party in Madison county,, and at said station of Yenice, and that it, the said second party, will not seek to divert traffic which may be offered for said station and ferry to other points on the line of the railroad now operated by it, the said second party, and. that it, the said second party, will, at all times during the continuance of this agreement, offer the same facilities and accommodation to parties desiring to do business either to or from said station as are by it, the said second party, afforded to parties who ship freights to or from other points on the line of the railroad now operated by said second party. And the parties hereto mutually covenant and agree that in case it shall at any time hereafter be deemed advisable to adopt a method of transporting freights and passengers across the Mississippi river at said station differing from the method now existing and in use, and that, by reason of such change in said mode of transferring freights and passengers, it shall become necessary to construct a new landing specially adapted to such new mode of transfer at said station, then and in that case the said party of the second part shall and will, at its own proper cost and expense, erect and construct such new landing at some point on the river front of the premises hereinbefore'granted and conveyed to said second party by the first party, and below the present landing of the party of the first part, and that said second party shall and will in such case build and maintain all tracks and other appurtenances which shall be necessary and proper to render the said hew landing so to be constructed as aforesaid available for the purpose of the new mode of transfer aforesaid. And the said first party agrees in such. case that it will so alter and construct the ferry boats at that time in use by said first party that the same shall be by such alteration and construction adapted to the new mode of transfer so adopted as aforesaid, and capable of amply accommodating all the business which may be offered at said station of Venice by reason of such change in the manner of transacting the same as aforesaid.”

The evidence also shows that in May or June, 1869, car transfer was introduced at the Madison County Ferry at Venice, and that defendant prepared, at its own cost, the said landing stipulated for, and also switch tracks for transfer of cars to the boats of said ferry, and that ever since that time whenever freight in cars was passed over the river, it was done by said ferry ; that said cars so transferred were first carried through the town of Yenice to the terminus of defendant’s road in East St. Louis, and the freight destined for St. Louis or beyond, if not billed to St. Louis via Yenice, was detained to await orders as to how it should be shipped across the river, whether by car transfer at Yenice or parcel transfer in loaded wagons at the Wiggins Eerry. If such freight was ordered to be sent by the Yenice Eerry, the order was obeyed, and such cars, as well as cars containing freight billed to St. Louis via Yenice, were sent back to Yenice, a distance of about two miles, and switched onto a track connecting with the Yenice car transfer boat at a cost of $1.50 per car, and when loaded on such boat, if it landed on the St. Louis side at Carr street, the distance which, it traveled was about t.wo miles, or if it landed at Chouteau avenue or the depots of the Iron Mountain and Pacific Railroad Companies, the distance was about four miles. The evidence shows that the Wiggins Eerry Company introduced cár transfer in the summer of 1870, and that thirteen out of fourteen railroads used its car transfer boats, and the distance traversed to make its landing at said Carr street was about 700 yards, and the distance to make its landing at said Chouteau avenue was about two miles. While the 'evidence showed that defendant, in consequence of the steepness of the grade, could not extend its track in a direct line to plaintiff's transfer boats, it also showed that an extension and connection could have been made by a curved line. Mr. Bisdom testified that there was no difficulty in making approaches for the Chicago & Alton by a curved line. Mr. Smith, a railroad engineer of ten or twelve years’ experience, testified that he was familiar with car transfer approaches at East St. Louis, and that one could be well made from the Chicago & Alton track on a sixteen degree curve and 300 foot radius. Mr. Clubb testified that the track of the Chicago & Alton, from its depot at East St. Louis to Brooklyn, runs parallel with the river, in some places within 250 feet of it; that between it and the river there is open ground, and that there was no .reason why the Chicago & Alton could not, with a track of 1,200 feet, connect with the Wiggins transfer at the south line of the town of Brooklyn.

The evidence also shows that on the 18th day of April, 1870,.the following circular was issued : •

“ Chicago & Alton Railroad Co., April 18th, 1870.

“ Instructions to Agents : Complaint has been made to this company by the Wiggins Ferry Company of St. Louis, that its agents have, contrary to former instructions issued them on this subject, in some cases forwarded freight sent to and from St. Louis, by way of "Venice, in Madison county, without instructions from the shipper or consignee so to do. You are, therefore, specially instructed, in all cases without exception, where goods are delivered to this company for transportation to and from St. Louis, and no direction is given you by the person or persons controlling the same as to the route by which the same shall be sent, to way-bill such goods to or from the city of St. Louis, via East St. Louis. In cases where the person or persons controlling the goods delivered to this company for transportation to and from St. Louis, give orders that such goods shall he sent via any other point than East St. Louis, you are instructed to send the same according to the orders given, and in every case to note the directions of the shipper on the way-bill accompanying the goods and on the bill of lading delivered to the shipper. Agents are positively forbidden to use any attempt to influence shippers or other persons controlling the direction of freight either to or from St. Louis, in favor of any particular route, but in every case to leave such parties entirely free to ship by whatever route they may choose, without any interference on tlfeir part or attempt to control the direction of such freights.

“ T. B. Blackstone, President.

“J. C. McMullin, General Superintendent.”

In the light of these facts, we are satisfied that public interest could not only have been as well but better served by car transfer at the Wiggins than at the Venice ferry, and that the contract of 1866 between the defendant and the Madison County Ferry was in fraud of the rights of plaintiff under the contract of 1864, and made in the interest of defendant and not in the interest of either the public or the shipper. We cannot resist the impression which the above facts have made upon our minds; that they evince a purpose on the part of defendant how not to perform its contract with the Wiggins Ferry Company, so as to evade the obligations it imposed, and at the same time to retain all the benefits it received under it. While we recognize the right of the shipper to direct the route by which his goods shall be carried, and the corresponding duty of the carrier to obey the direction, we do not think the principle can be invoked by defendant in this case to relieve it from responsibility incurred under the contract of 1864, for the reason that the evidence tends strongly, if not conclusively, to show that the defendant, by its action in the premises, had reduced the shipper to the necessity of electing to take either wagon or piece transfer at the Wiggins ferry, or car transfer at the Venice ferry, and thus forced the shipper to accept car transfer at Venice, thereby subjecting his goods to transportation on the water a distance twice as great as that to which they would have been subjected if transferred by the Wiggins ferry.

In this view of the case the question as to whether the way-bill copy-books and manifest copy-books offered in evidence ought or not to have been received, is immaterial. The purpose for which they were offered was to show that the defendant was directed by the shipper to use the Venice ferry in making car transfer, and acted in obedience to such orders. If the evidence offered would have established the above facts, still, in view of the further fact already established, that defendant, by declining to have car transfer at the "Wiggins ferry, when the evidence shows it could have been had with more facility than at Venice, and defendant, under its contract with plaintiff', was bound to provide for it, had reduced the shipper to the necessity of taking car transfer at Venice, where it had been provided at the instance and suggestion of defendant in disregard of its obligations to plaintiff, defendant cannot be heard to say that it violated its contract by direction of the shipper. The choice of the shipper having been thus compelled by defendant, it is as much hound bjr the act as if it had directly controlled the transfer. Defendant cannot be heard to say that it did not, but that the shipper did control the car transfer at Venice, when it is clear from thé evidence that such control by the shipper was brought about and forced upon him by the wrongful act of defendant in not regarding the obligations of the contract with plaintiff.

9. referee's ». P0KT'

"While the exceptions made to the report of the referee might well have been overruled on the ground that they were not so specific as to inform the court in what particular the report was unsustained by the evidence, nor wherein it was against the law and instructions of the court, nor what incompetent evidence was rejected by the referee,- still if we consider, as contended for by counsel, that the exceptions were sufficiently specific to require the court to look into the evidence on which the report was based, we are of the opinion that the trial court did not err in overruling the exceptions, inasmuch as there was evidence tending to establish every fact found by the referee. It has been held by this court in the cases of Western Boatman’s Benev. Asso. v. Kribben, 48 Mo. 37, and Franz v. Dietrich, 49 Mo. 95, that the report of a referee is equivalent to a special verdict and.will not be disturbed on appeal as being against the weight of evidence; that we will not go into a consideration of the sufficiency of the evidence to support the finding of the referee* “ The finding of the referee stands as the verdict of a jury» and where there is any evidence to sustain it we will suppose that the whole evidencé was properly weighed and the requisite effect given it.”

10. contkact: measure of damages.

The referee in his report gave to plaintiff as damages the profits for ferrying all cars transferred by the Venice ferry containing freight received and billed „ . 0 0 for carriage over defendant s road at places or for destinations beyond the terminus of its road. The referee, in thus acting, adopted the rule laid down by the trial court in giving its judgment, where it is said that “ the conclusion reached, therefore, is, that the proper construction of the agreement required the defendant in all cases where it engaged in contracts for the transportation of persons or property beyond the terminus of its road, and the execution of such contracts required the employment of a ferry between St. Louis and the Illinois shore, to employ the ferry of plaintiff, and in whatever instances the defendant has failed to do this it is liable for all profits lost to it by reason of such failure, and this applies as well to freights in bulk or cars as in parcels or packages.” In view of the fact that defendant obligated plaintiff'always to keep sufficient ferry boats and appliances to do all the ferrying of persons and property required to be done, and the fact that plaintiff had fully complied with its obligation and had incurred all the expense of time, money and labor to carry the required freight, the above rule for the measurement of damages was fully authorized. Pond v. Wyman, 15 Mo. 183; Nearns v. Harbert, 25 Mo. 352.

The instructions given by the court show that the cause was tried upon a view of the case more favorable to defendant than that which we have taken of it, and upon full examination of the record we are unable to perceive that any error was committed against the defendant, and will, therefore, reverse the judgment of the court of appeals and affirm that of the circuit court,

in which all the judges concur.