Opinion of the Court.

storage from the railway company during the year 1886 was less by 1,740,194 bushels than the 5,000,000 bushels covenanted to be received, and, therefore, the railway company became bound at the close of the year 1886 to pay the plaintiffs, (defendants in error,) on account of the deficiency, the sum of $17,401.94.

The second breach averred that the grain received for storage from the railway company during the year 1887 was less by 2,042,408 bushels than the 5,000,000 bushels covenanted to be received, and, therefore, the railway company became liable at the close of the year 1887 to pay to the plaintiffs, (defendants in error,) on account of the deficiency, the sum of $20,424.08.

The main breach specially set up and relied on is the third, which comprehends the other two, and is thus stated in the declaration:

"The said plaintiffs further aver that the total amount of grain received in the elevators mentioned in said indenture during the years 1886 and 1887 did not equal the ten million bushels or five million bushels upon an average for each of said years covenanted by the defendant in said indenture to be therein received during those years, but, on the contrary, the said plaintiffs aver that the total amount of grain received in said elevators during said two years, allowing to the defendants the full storage capacity in said elevators of one million bushels stipulated for in said indenture, was less than the ten million bushels promised to be therein received by the defendant as aforesaid during said years 1886 and 1887 by three million seven hundred and eighty-two thousand six hundred and two (3,782,602) bushels, and the plaintiffs aver that on account of said deficiency between the amount of grain promised by the defendant to be received in said elevators and the amount actually received therein during said years the said defendant became and was liable to pay to the plaintiffs, according to the terms and provisions of said indenture of lease and agreement and its further covenant in such case therein provided, the sum of one cent per bushel upon the total number of bushels constituting the deficiency of said years 1886 and 1887, whereby and by reason whereof the said defendant,

Opinion of the Court.

by virtue of its covenant aforesaid, became liable to pay to said plaintiffs thirty-seven thousand eight hundred and twentysix dollars and two cents ($37,826.02) at the times and in the manner in said indenture provided."

On demurrer of the defendant to the declaration being overruled by the court, 39 Fed. Rep. 416, so far as it related to the breaches thus charged, the defendant interposed a plea of general performance, and by stipulation of the parties it was agreed that "said cause shall stand for trial upon the single plea of general performance, first pleaded by said defendant, and the issue made thereon, with the right reserved to either party to introduce on the trial of said cause under said issue all evidence which could be properly introduced under any issue legitimately framed under special pleas applicable to the case, and that upon the filing of this stipulation all other pleas filed herein by the said defendant shall be considered as withdrawn."

The cause was thereupon submitted and heard upon its merits by the court below, which made the following special findings of fact:

"First. It found the contract as already recited, duly made and entered into between the parties.

"Second. That said elevator was constructed upon the lots named in said agreement and was completed within the time and in accordance with the terms and conditions of said agreement, on or about the 24th day of December, A.D. 1880, with a working capacity of 750,000 bushels; that the storage or working capacity of the elevator known as the Fulton elevator was 350,000 bushels, both elevators affording storage and working capacity of about 1,100,000 bushels of grain, and that the cost of constructing said new elevator was about the sum of $200,000.

"Third. That the said Munger, Wheeler & Company, as assignees of Jesse Hoyt and his associates, built said new elevator and have controlled and operated both elevators since December, 1880, and are now operating the same, and that said firm during said time also owned and controlled six other elevators, all located in the city of Chicago, upon other

Opinion of the Court.

railroads entering into said city, and that at the present time said firm controls and operates in all eight grain elevators in said city, with an aggregate storage or working capacity of about 6,000,000 bushels of grain.

"Fourth. That in the year 1886 the plaintiffs received from the defendant, for store in the St. Paul or new elevator, 1,923,339 bushels of grain, and in the Fulton elevator 903,482 bushels, and also that the plaintiffs received from the defendant for storage 432,985 bushels of grain in the Union elevator, located on the Chicago and Alton Railroad, in the city of Chicago, making a total for the year 1886 of grain received by the plaintiffs from the defendant of 3,259,806 bushels, all of which is credited to the defendant in its account for that

year.

"That in the year 1887 the plaintiffs received from the defendant in the new or St. Paul elevator 2,300,292 bushels of grain, and in the Fulton elevator 657,300 bushels of grain, making a total of 2,957,592 bushels of grain received by the plaintiffs from the defendant during the year 1887.

"That all the grain received and handled by the plaintiffs in the Fulton and St. Paul elevators during said years was received from the Chicago, Milwaukee and St. Paul Railway Company.

"Fifth. The court further finds that the plaintiffs admitted in open court that during the years 1886 and 1887 grain was tendered by the defendant to the plaintiffs for storage, and that it could not be received for the reason that the plaintiffs' warehouses were filled; that the grain so tendered amounted to 8,685,269 bushels, and that the plaintiffs never declined to receive shipments of grain from the defendant when such elevators had capacity to receive it within 1,000,000 bushels, and that when the plaintiffs refused to receive further grain for storage the defendant was notified that it occupied the entire capacity stipulated for in the contract at the time. plaintiffs declined to receive the grain so tendered, to wit, 1,000,000 bushels.

"Sixth. That for the year 1886 the defendant paid for switching grain to other elevators when the plaintiffs were

Opinion of the Court.

unable, and, therefore, refused to accept the same, the sum of $2871.00, and in the year 1887 the sum of $9962.35, and that the cost of train service for the defendant in delivering such grain to other elevators amounted to about the same sum.

"That the defendant also, during said year, contracted with parties having grain stored in said elevators to remove the same in order to furnish more room for the defendant; that for the removal of 100,000 bushels the defendant paid the owners thereof $15,000.00, and that after such removal the plaintiffs refused to receive from the defendant for storage more than 40,000 bushels in place of the grain that had been so removed for the reason that that amount of additional grain exhausted the storage and hauling capacity of said two elevators; that it was to the interest of the defendant to deliver all the grain to the plaintiffs at said St. Paul and Fulton elevators during said years.

"That during the two years in controversy the entire storage capacity of said elevators was constantly occupied by grain received from the defendant's cars, and, although the plaintiffs refused to receive additional grain tendered by the defendant during the same period, their refusal was always based upon the ground that their elevators were full and contained more than 1,000,000 bushels of grain received from the defendant.

“That at no time during the said years 1886 and 1887 did the plaintiffs refuse to receive grain from the defendant for storage in said elevators when there was any unoccupied storage space in the same, and that some of the grain so delivered and stored during said years remained in said elevators so long that the plaintiffs were not able to receive or handle for defendant during said years the amount of grain contemplated by the contract or the full amount actually tendered by the defendant, and that but for this unusual condition the plaintiffs would have received and stored all the grain tendered by the defendant.

"Seventh. The court further finds that the plaintiffs' regular charges for storage of grain in said elevators during the years 1886 and 1887 were one and three-quarters of a cent

Opinion of the Court.

per bushel for the first ten days and one and one-half of a cent per bushel for the subsequent ten days, and for every thirty days the storage charges were one cent and threequarters per bushel; that for 1,000,000 bushels stored in such elevators and continued therein for one year, the regular storage charges for the same during the years 1886 and 1887 would be at the rate of $150,000 for each 1,000,000 bushels for the term of one year; that if said elevators could be kept employed with first storage, that is, if 1,000,000 bushels could pass through said elevators each ten days, the charges for a year would amount to about $270,000.

"That the length of time that said grain remained in store was not regulated or controlled by either the plaintiffs or defendant, but by the shippers or owners of such grain.

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Eighth. That the plaintiffs have kept the account of all their elevators together, and, therefore, could not state the earnings of the elevators in question for the years 1886 and 1887.

"Ninth. There is no evidence of the amount of earnings of said St. Paul and Fulton elevators during the years 1886 and 1887, or of the income of the plaintiffs derived from the storage of grain or charges thereon in said elevators during said period of time, nor is there any evidence of any actual damages sustained by the plaintiffs by reason of their not handling in said elevators during said years the full amount of 10,000,000 bushels of grain, or by reason of the alleged breach of covenant by the defendant other than the one cent per bushel for the years 1886 and 1887, as prescribed by article 8 of the contract."

As the result of these findings, the amount of the deficiencies for the years 1886 and 1887, with interest from the end of each year to September 25, 1889, was ascertained to be $42,806.13, from which was deducted the rental and interest thereon, for the years 1886 and 1887, set up as a counterclaim, amounting to the sum of $9022.30, which left a balance due from the defendant to the plaintiffs of $33,783.83, for which judgment was rendered.

The defendant moved for judgment on various grounds,