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Opinion of the Court.

which were denied by the court, and which need not be specially noticed, as they are covered by the assignments of error.

In the view we take of the case it is not necessary to consider several questions presented by the plaintiff in error, such as want of mutuality in the covenant in question, or the impossibility of the performance thereof, or that it was a wagering contract, and ultra vires on the part of the railway company. The material questions of the case are covered by the two assignments that the judgment is not sustained by the special findings of fact, and that the court erred in its construction of the contract between the parties. There is no bill of exceptions in the record, and the errors of law relied upon by the plaintiff in error must therefore be considered and determined upon the special findings of fact.

The action of the lower court in overruling the demurrer to the declaration proceeded in part, if not entirely, upon the ground that the undertaking entered into by the railway company in and by the eighth article of the lease amounted to a guaranty that the business of the elevators during each year of the term should amount to a certain sum. understand their position, counsel for the defendants in error do not, however, insist upon this construction of the covenant, but rely upon the interpretation given it by the Circuit Judge at the hearing on the merits, which was “that if, with a storage capacity of 1,000,000 bushels, the plaintiffs should not be able to receive and handle 5,000,000 bushels annually, and earn commissions on that basis, the defendant would pay to the plaintiffs one cent per bushel on the deficiency.”

If the true meaning and intent of the covenant, read, as it should be, in connection with the other provisions of the contract, and in the light of the surrounding circumstances, the situation of the parties, and the objects they respectively had in view, was to guarantee to the lessees that they would actually receive, store and handle at the designated elevators, on an average each year of the lease, as much as 5,000,000 bushels of grain, and that if in the course of the grain business they could not, in fact, receive, store and handle more than

As we Opinion of the Court.

1,000,000 bushels during the year, still the railway company would be liable to them for one cent on 4,000,000 bushels not so received and stored, although tendered and offered to them in the manner and at the place provided for in the contract, then there is no error in the judgment of the Circuit Court.

If, however, the language of the stipulation means, as counsel for plaintiff in error contend, that the railway company only agreed that the quantity of grain which it would deliver at the elevators or tracks connected therewith, in the usual way in cars, for storage and handling, should amount on an average to at least 5,000,000 bushels per annum for a period of ten years, and that in case the grain so delivered, or brought to the elevators for delivery, fell short of that quantity, it would pay one cent per bushel on the amount of such deficiency, then the judgment is erroneous, and should be reversed. We are of opinion that the latter construction is the proper one, and meets the real object and purpose which the parties had in view in entering into the contract.

To meet a natural and reasonable solicitude of the lessees that the full supply of grain should be brought to their elevators, the railway company agreed “to deliver on said tracks in cars, at said elevators, to the parties of the second part (the lessees) all the grain that may be brought by its railway consigned to parties in the city of Chicago, so far as the party of the first part (the railway company) could legally control the same, for handling and storing in said elevator.” If the railway company had failed to deliver at the elevators for storage and handling all grain, consigned or unconsigned, which it brought to Chicago, and could legally control, it might perhaps have been liable to the lessees for the damage thence resulting, and could not have set up, by way of excuse or defence, that the elevators were continuously filled with other grain previously received from the railway company. The fact that the lessces had furnished storage for a million bushels received from the railway company, and thereby exhausted the capacity of their elevators to take any more grain on storage so long as the million bushels remained on hand, would not have exempted the railway company from the obli

Opinion of the Court.

gation of delivering at the elevators all grain brought by it to the city, so far as it could control the same. Under this provision of the contract if the quantity brought, and subject to its control, was four or five million bushels in addition to the million previously delivered and in store, the railway company would still be bound to tender such additional grain to the lessees, who, under the construction placed upon the eighth article of the lease by the court below, could not only decline to accept the same, but actually make their inability to receive and store the grain tendered the basis of a valid claim for one cent per bushel on the amount so tendered and declined. A result so unreasonable as this is hardly to be supposed to have been contemplated and intended by the parties. It is found as a fact that the length of time grain could or would remain in store was not, and could not, be legally controlled by either the lessor or the lessees, but was subject to the exclusive control, in that regard, of the shippers and owners of the grain. The construction which was placed upon the contract, and which is necessary to support the judgment below, would place the railway company in the position of undertaking to guarantee that shippers and owners having grain on storage in the elevators would so deal with, or remove and dispose of the same as to enable the lessees to store and handle more grain than the elevators had capacity for. It is not to be supposed that the railway company was undertaking to make a guaranty as to how grain, owned and stored by others, would be dealt with or controlled in respect to its remaining or being removed from the elevators, and the language of the covenant does not require a construction which would place the railway company in that position.

The court below attached importance to the use of the word “ received,” as employed in the eighth article. The words “ total amount of grain received at said elevator” would, however, be pressed beyond their legitimate and proper meaning if construed to mean that the elevator should actually store and handle 5,000,000 bushels during each year without regard to its capacity, or without reference to the ability of the lessees to accept and store that quantity. The language of

Opinion of the Court.

the covenant is that the “total amount of grain received at said elevators shall be at least 5,000,000 bushels on an average for each year during the term of this lease, and in case it shall fall short of that amount, the said party of the first part agrees to pay to the said party of the second part one cent per

bushel on the amount of such deficiency.” The agreement or stipulation that the amount of grain “received at said elevator" should reach the designated quantity, falls short of an undertaking or guaranty by the railway company, that the elevator should, in fact, store and handle that quantity each year of the term. The amount of grain “received at” an elevator during a given period should not be construed as meaning that such amount would or should be actually taken into the same for storage and handling, unless there is something in the context clearly indicative of an intention to use the words in the latter sense. No such intent appears in the present case.

The manifest object and purpose of the covenant was to assure the lessees that there would be delivered at or brought to said elevators by the railway company and others a total amount of at least 5,000,000 bushels of grain per annum for storage and handling, and not that the railway company would guarantee that the lessees could or would actually receive, store and handle that quantity at the elevators. When, therefore, the railway company, and others, offered at the elevators the stipulated quantity or amount of grain, it performed the condition of its guaranty, and the inability of the lessees to accept the grain so tendered, on account of the storage capacity of the elevators being fully occupied by third parties, whose action in respect to allowing the grain to remain, or to be removed, was beyond the control of either the lessor or the lessees, cannot operate to defeat such performance or constitute any ground for thereafter holding the railway company liable on its guaranty.

There can be no question that a party may by an absolute contract bind himself or itself to perform things which subsequently become impossible, or pay damages for the nonperformance, and such construction is to be put upon an

Opinion of the Court.

unqualified undertaking, where the event which causes the impossibility might have been anticipated and guarded against in the contract, or where the impossibility arises from the act or default of the promisor. But where the event is of such a character that it cannot be reasonably supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words, which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happens.

This principle is directly applicable here, for the covenant sued on cannot be construed to mean that the railway company contemplated by the terms of its agreement that it was to be held responsible for the course of business of the lessees, or that it was undertaking to guarantee thatoshippers and owners, having grain in store at the elevators, would remove the same with sufficient dispatch to enable the elevators to store and handle as much as 5,000,000 bushels annually. This would be a most unusual and unreasonable undertaking, wholly beyond the control and ability of the railway company to perform, and while the words “receive at the elevators” might in and of themselves be broad enough to include such an undertaking, if the context clearly showed that such was the intention of the contracting parties, we are of opinion that they were not so understood and used by the parties in this case, and should not be so extended as to cover the contingency or possibility of such a course of dealing as would prevent the acceptance of grain if the agreed quantity was tendered. There is no allegation in the declaration that grain to the amount specified was not, during the years 1886 and 1887, received at or tendered in cars on the tracks at said elevators for delivery, to the amount of or in excess of 5,000,000 bushels of grain. On the contrary, the court below finds, as a matter of fact, that the defendant in 1886 and 1887 so delivered 6,210,398 bushels, which was received by the defendant into said elevator, and further finds as follows: “Fifth. The court further finds that the plaintiffs admitted in open court that during the years 1886 and 1887

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