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1. We find ourselves unable to agree with the learned circuit judge in respect to the nonmutuality of the contract by which the plaintiff agreed to supply all of the “requirements” of the defendant's business for the remainder of the year 1902. The defendant was engaged in an established manufacturing business which required a large amount of steel castings. This was well known to the plaintiff, and the proposition made and accepted was made with reference to the “requirements” of that well-established business. The plaintiffs were not proposing to make castings beyond the current requirements of that business, and would not have been obligated to supply castings not required in the usual course of that business. By the acceptance of the plaintiff's proposal, the defendant was obligated to take from the plaintiff all castings which their business should require. The contract, if capable of two equally reasonable interpretations, should be given that interpretation which will tend to support it and thus carry out the presumed intent of both parties. The second and third paragraphs must be read in the light of the first. Thus read, there is no ground for doubting that the words the "tonnage you wish to order," and "such deliveries as you may require," have reference to the established “requirements” of the business for the following “month,” and the deliveries of the tonnage thus estimated. The contract falls under and is governed by the case of Loudenback Fertilizer Co. v. Tennessee Phosphate Co., 121 Fed. 298, 58 C. C. A. 220, 61 L. R. A. 402, where the contract was to sell to a manufacturer of fertilizer "its entire consumption of phosphate rock” for a term of five years. In that case we held that the contract was mutual, and the buyer under obligation to take its entire requirement of phosphate rock from the seller. Concerning the definiteness of such a contract, we said:

"A contract to buy all that one shall require for one's own use in a particular manufacturing business is a very different thing from a promise to buy all that one may desire, or all that one may order. The promise to take all that one can consume would be broken by buying from another, and it is this obligation to take the entire supply of an established business which saves the mutual character of the promise."

To the same effect and directly in point are the cases of Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co., 114 Fed. 77, 52 C. C. A. 25, 57 L. R. A. 696, Minnesota Lumber Co. v. Whitebreast Coal Co., 160 111. 85, 43 N. E. 774, 31 L. R. A. 529, and Wells v. Alexandre, 130 N. Y. 642, 29 N. E. 142, 15 L. R. A. 218.

2. Among the findings of fact was the following:

“(19) Throughout the United States it is a custom among manufacturers of steel castings, such as were to be manufactured for defendant by plaintiff, to make all agreements contingent upon strikes, accidents, and other unavoidable delays, and all contracts for the manufacture of such castings were made with reference to and conditioned upon such custom, which said custom was well known to defendant when said agreement was entered into, and was made with reference to said custom."

The court also found that the contract itself was contained upon the printed letter head of the plaintiff, which, among other things, had printed thereon these words: “All agreements contingent upon strikes, accidents and other unavoidable delays, beyond our control.”

Nothing is better settled than that it is not admissible to contradict a contract by evidence of custom or usage, but admissible to explain the meaning of words and phrases used and to annex to such contracts certain incidents which circumstances indicate the parties intended to annex when the words they have used do not necessarily exclude the operation of such custom or usage. Lillard v. Kentucky Distilleries & Warehouse Co., 134 Fed. 168, 174, 67 C. C. A. 74.

That nothing will excuse the performance of a contract except an act of God or the public enemy is equally clear. Whether the plain agreement to supply the defendant with all the castings which its business should require is not contradicted by a custom or usage which would excuse the performance upon the contingency of a strike or accident is a very grave question, and one which we pretermit because we do not find that the plaintiff was prevented from performing its contract by the occurrence of any accident or other contingency included by the alleged custom or usage in the steel casting business. It is true that the plaintiff's furnace was shut down from August 1st to November 15th for the purpose of making necessary repairs. But the facts found show that the want of repair which necessitated going out of blast for repairs August 1st was à condition which existed at the time this contract was executed, and had existed for some months before. The output had been severally affected for months by a defective operation, the cause of which was not understood. Various efforts were made to remedy the matter, but without results. In this existing crippled condition plaintiff entered into the contract here involved and continued to operate until some time in June, matters growing worse, when notice was given of a shutdown August 1st to overhaul and repair. It was after the work of overhauling had begun that the cause of the bad draught which had troubled the operation was discovered and remedied. The “accident" or "unavoidable delay” excused by custom or usage must be confined to accidents and delays due to causes originating after the contract. Plaintiff knew when it made this contract that its furnace was working badly, and that normal results could not be relied upon. They did not then know the cause of the trouble, but that the trouble was more vital than they then suspected and would take longer to remedy is a misfortune that cannot be cast upon the defendant as an "accident” excused by custom or usage.

3. The "requirements” for defendant's business for November and December were in excess of requirements of preceding months. The defendant in error says that on October 24th it gave plaintiff in error notice that on or before November 19th its furnace would be in running order, and that if furnished patterns they could put them in sand and be ready to turn out work on or before that day. The facts found show that the castings required were made upon patterns supplied by defendant, and that when plaintiff shut down these patterns were necessarily returned and placed with other founders, and so were in the hands of other contractors. When this notice was given, defendant notified plaintiff that it had been forced to make arrangements with other founders for its requirements for the remainder of the year, and that its patterns were in the possession of such other con

tractors, to whom orders had been given. The court below found as a fact that from April 1st to the close of the year the prices of such castings advanced materially, and that it was difficult to get orders filled, and that the contracts made by defendants were for the best prices obtainable. The plaintiff, having inexcusably breached its agreement, is not in a situation to complain of the measures resorted to in good faith by the defendant to supply itself with the castings which the plaintiff was under obligation to furnish. It may be that some of defendant's outstanding contracts for November and December “requirements” might have been canceled and the patterns returned to plaintiff; but it was not bound to do so under the circumstances. The market was an advancing one, and defendant made arrangements on best obtainable terms to obtain what plaintiff was unable to furnish, and this is all the plaintiff had a right to ask. Upon the facts found the judgment should have been for defendant for $5,498.24, less $3,700.78, with interest on this balance from January 1, 1903, and the costs of this suit.

Judgment reversed, with directions to enter judgment in accordance with this opinion.

CLOUGH V. GRAND TRUNK WESTERN RY. CO.

(Circuit Court of Appeals, Sixth Circuit. July 17, 1907.)

No. 1,633.

1. CARRIERS-CIROUS TRAIN-TRANSPORTATION CONTRACT-PUBLIC POLICY.

A circus company, owning its own cars, contracted with a railroad company for the hire of motive power and the use of tracks and trainmen, to be considered as the circus company's servants, for the transportation of the train from one place to another; the contract exempting the railroad company from liability for injuries to any person or persons using the train from whatsoever cause. Held that, the railroad company being under no legal duty to move the circus company in the manner specified, the contract was not contrary to public policy.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, $ 648.] 2. SAJE-INJURIES TO EMPLOYÉ--CARRIER AND PASSENGER-RELATION.

Where a carrier leased motive power, the use of its tracks, and train operatives to a circus company, under a contract exempting the carrier from liability for all injuries, the relation of passenger and carrier did not exist between the railroad company and an employé of the circus company, traveling solely by virtue of his employment, who was not a party to such transportation contract, so as to entitle such employé to recover against the railroad company for injuries sustained in a collision between two sections of the circus train.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, $ 977. Who are passengers, see note to Chamberlain y. Pierson, 31 C. C. A. 164.]

In Error to the Circuit Court of the United States for the Eastern District of Michigan.

Action for injury to an employé of a traveling circus company while riding in a train of cars belonging to his employer, drawn, under a special contract, over defendant's road. The circus company owned as a part of its equipment the cars necessary for the transportation of its animals, property, and employés from place to place, and through its own servants loaded and unloaded these cars to suit its own convenience. For the hauling of these cars upon a

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schedule arranged to suit its business, it contracted with the defendant company for motive power and servants to operate same and trainmen to operate the train. These cars were 36 in number, and were divided into two sections of same train, Plaintiff, while sleeping in one of the sleeping coaches provided by his employer for the use of his employés exclusively, was hurt by a rear-end collision betwen the two sections of the circus train. Whether this collision was a blameless accident, or was due to some defect in the brakes on the cars owned by the circus company, or some defect in one of the engines owned by the defendant company, or was due to some negligence of one or other of the servants engaged in the operation of the train itself, does not appear, and no effort was made by either side to explain. The plaintiff said below, and here repeats, that he was a passenger, and that proof of an accident and injury makes a prima facie case for him. The defendant denies that relation and relies upon the special terms of the arangement under which it was hauling this special circus train. That special contract, among other things, provided that the railroad company should hire the motive power and men to operate same and the right to use the tracks, to an extent necessary to haul said cars, and that it should furnish train conductors, brakemen, engineers, and firemen, but that the same should, while engaged in the operation of the circus company's train, be held to be the "servants of the circus company, “and to be operating said motive power, cars, and trains under the order, direction, and control" of the circus company. To enable the defendant to operate its own trains without interference by the circus train and for the safety of all concerned, it was further provided that there operations should be subject also to the rules and regulations and orders of the defendant's train dispatcher. In consideration of the special character of this contract, and the reduced rates given, it was stipulated that the railroad company should not be liable to the circus company, or to "any person or persons whomsoever using said train or carried under this contract for any loss, injury or damage that may happen * * *

no matter how the same may be caused, all risk whatsoever being taken and assumed by the" circus company, called the contractors. By another clause the circus company agrees to assumed all risk of loss or damage, no matter how caused, "which may be sustained by any person, animal, or property of any kind while being carried" and to "indemnify, protect and save harmless" the said railroad company from any loss, damage, or expense which it may bear or suffer arising out of any claim by any person on account of injury, or loss of property. Upon the conclusion of all the evidence, the court below instructed a verdict for the defendant in error.

John H. Brogan and Charles Hatch, for plaintiff in error.
Harrison Geer, for defendant in error.
Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court.

If the contract under which the Wallace Circus was being transported over the railway of the defendant was a valid contract, the relation of the railway company to the circus company was not that of a common carrier at all. That the railway company was under no common-law obligation to move the circus company over its line in the manner it was being transported at the time of the injury to the plaintiff in error must be conceded. If the railway company was under no statutory or common-law obligation to render the special service it was called upon to render there were no reasons of public policy which forbade the rendition of such service upon such terms as the parties might stipulate. The right to make special stipulation under such conditions has been recognized and applied in a number of cases

substantially like the case at bar when circus trains were hauled under special agreements relieving the company from carrier's liability. Coup v. Wabash, etc., Ry. Co., 56 Mich. 111, 22 N. W. 215, 56 Am. Rep. 374; Fortpaugh v. Delaware, etc., Ry. Co., 128 Pa. 217, 18 Atl. 503, 5 L. R. A. 508, 15 Am. St. Rep. 672; Robertson v, Old Colony R. R. Co., 156 Mass. 525, 31 N. E. 650, 32 Am. St. Rep. 482; Chicago, etc., Ry. Co. v. Wallace, 66 Fed. 506, 14 C. C. A. 257, 30 L. R. A. 161; Wilson v. Atlantic, etc., R. R. Co. (C. C.) 129 Fed. 774. The same freedom of contract in respect to the transportation of express matter and express messengers has been recognized repeatedly. B. & O. Ry. v. Voight, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, and cases therein cited.

But it is urged with much force that Clough, the injured plaintiff in error, was not a party to the contract between the circus proprietors and the railway company, and therefore not affected by it. It has been said also that he neither agreed to relieve the railway company from liability for negligence while being carried upon the circus train nor bargained away by any agreement with the circus company his right to hold the railway company or the circus company liable for any negligence by which he might be injured while being transported as an employé of the latter. Upon these grounds it has been urged that the Voight Case has no application, because there the messenger had expressly assumed in his contract with the express company the risk of all injury he might sustain while in its service and to assume and ratify any agreement the express company had made or might make releasing any transportation company from liability to any of its employés. It is unnecessary to consider whether an express messenger's right of action to recover for carrier's negligence would depend upon any personal agreement made by him. In the Voight Case the messenger's release to the express company was a fact in the case, and as that inured to the benefit of the railway company it was unnecessary to go farther. See, also, Long v. Lehigh Valley Co., 130 Fed. 870, 65 C. C. A. 354, where it was held that the messenger would be presumed to know and assent to any contract between the express company and the railway company under which he was to be transported.

In Brewer v. N. Y., etc., R. Co., 124 N. Y. 59, 26 N. E. 324, 11 L. R. A. 483, 21 Am. St. Rep. 647, it was held that the messenger was not affected by the contract between the express company and the railway company by which he was made to assume the hazard of his carriage; he having no knowledge of the contract.

The express messenger cases are all distinguishable from the case at bar in the character of the service which the railway company undertook to render. In the express company case the car in which the express matter was carried and the messenger traveled was furnished by the railway company, and the car itself was part of a train under the exclusive control of the carrier. Under the contract here involved, the trains were made of cars furnished and loaded by the circus company. These trains were pulled by engines which were the general property of the railway company, but the special property of the circus company under a contract of hiring. The trains were to be hauled over the tracks of the defendant in error, but only upon a

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