Graham & Ward v. Macon, Dublin & Savannah Railroad

Lamar, J.

(After stating the facts.) The contract for the exchange of freight was not void as being contrary to public policy. Instead of defeating, it was intended to meet competition. There is no suggestion of any restraint of trade, any increase of rates, any rebate or pooling, any unjust or 'unlawful discrimination, or anything that interferes with the right of a shipper to route his freight over a different or any desired line. Indeed, there is nothing to sustain this ground of attack, unless it be unlawful for parties who are able to contract to covenant to receive from and deliver to each all the freight controlled by the other. Graham & Ward, as individuals, had the natural and inherent power to make any contract not prohibited by law. The railroad company, on the other hand, had the power to make any contract not ultra vires or not prohibited by law. Carriers can sell through tickets and issue through bills of lading. Each of these parties had the right from day to day to interchange freight with the other. If they could make such an exchange daily, there is no reason why they should not do so weekly, monthly, or by the year. , If they could do so voluntarily, they, for- a valuable consideration, could bind themselves to make the interchange. To *759 such an agreement the law would of course attach the incidents of prompt and adequate service, and the further qualification that' the rights of the shipper or of the public should not in any way be prejudiced. But that the policy of the law is not against the traffic arrangement between these parties appears from the fact that the boat line and the railroad line were equivalent to an extension each of the other. The railroad company either had, or, as matter of course, could have obtained the charter power to own and operate this boat on this riyer. Civil Code, §§ 2174, 2183. Had it done so, of course no one would dispute that the interchange of freight between the boat and the cars would have been legal. And if this could have been done thus directly, there is no reason why it could not have accomplished the same interchange of freight indirectly, and without a purchase of the boat; for, in effect the contract was the acquisition of a qualified interest in a boat line. As long as the public is not harmed, there is no reason why the parties should not be held to the terms of the contract. Compare Seaboard Air-Line R. Co. v. W. & A. R. Co., 97 Ga. 289 ; Coles v. Central R. Co., 86 Ga. 251 ; Wiggins Ferry Co. v. Chicago & Alton R. Co., 73 Mo. 389 ( 5 Am. & Eng. R. Cas. 1 ); Cumberland Valley R. Co. v. Gettysburg R. Co., 177 Pa. St. 528; Tonawanda R. Co. v. N. Y. Cen. R. Co., 42 Hun, 496 ; Wiggins Ferry Co. v. Ohio & Miss. R. Co., 142 U. S. 396 ; Atchison, T. & S. F. R. Co. v. Denver R. Co., 110 U. S. 668 , overruling same case in 15 Fed. 650 .

4. As to the other grounds of the demurrer: — The covenant of each of the parties was a sufficient consideration to support the promise of the other. Civil Code, § 3661. The lease of the boat, and the firm’s readiness to receive and deliver freight, amounted to a performance which justified the demand by them for a corresponding performance of the railroad’s agreement to erect the hoist and receive and deliver freight as stipulated. Nor was the contract unilateral or wanting in mutuality. The uncertainty as to- its duration might have made it difficult to decree specific performance. But here the contention that it was for too indefinite or too long a period of time is answered by the fact that Graham & Ward only rented the boat for twelve months. And if, as contended, either party would have had the right to rescind, there is no allegation that any notice to that effect was given by *760 the railroad company, which, instead of revoking, broke the contract while it was in full force and being performed by Graham & Ward.

5. The case having evidently been dismissed on the ground that the contract was void, the question as to the elements and measure of damages was not passed upon. There was no statement as to the amount of freight diverted by the railroad company, and no data given from which the fact of damage therefor could be calculated. Any defect in this respect can be cured by amendment. But whether there were any special damages or not, it was error to dismiss the petition on demurrer, since Graham & Ward were at least entitled to recover nominal damages for the railroad’s breach of the contract. Kenny v. Collier, 79 Ga. 743 (1); Civil Code, § 3801.

Judgment reversed.

All the Justices concur.