Birmingham Packing Co. v. Birmingham Belt R. Co.

*182 GARDNER, J. The bill showed that complainant’s predecessors (whose rights and interests in the contracts referred to in the statement of the case are owned by it) in consideration of the construction and operation by the respondent of its railroad to their plant, and the agreement in writing fixing a charge of $3 per car for transporting and delivering the same to their (former) said plant, executed a deed to respondent conveying with warranty of title 31/100 of an acre, more or less ; that this agreement was complied with on the part of respondent, and the rate of $3 per car was charged from the time of the contract in 190-1 until E'ebruary 23, 1907, when the Legislature of Alabama enacted another law (section 5531 of the Code of 1907) prohibiting discrimination under penalty. As we construe the bill, it also discloses that the regular rate charged to all shippers was $5 per car, which was the rate filed and published with the Alabama Railroad Commission, and also with the Interstate Commerce Commission, and which, it must be assumed, was a reasonable rate, being the established legal rate for all shippers; and that the $3 rate per car was a special rate to complainant’s predecessors only. It also appears that respondent declined to abide by the $3 rate agreement upon the sole ground that, as understood by respondent, it was forbidden to do so by law. It is not questioned by complainant’s counsel that the parties entered into the contract subject to the police power of the state, but it is insisted that as the respondent has received the full benefit of the agreement, and has acquired the property of complainant’s predecessors, and that as the contract has been breached and incapable of enforcement the deed (Exhibit U) should be canceled and annulled. The special prayer is for a cancellation of said deed. To work a destruction or cancellation of a deed under the facts alleged, it must fippear that the agreement as to the special rate constituted a condition subsequent, the breach of which would work a forfeiture of the estate. The question of condition subsequent in a deed was considered by this court in the recent case of S. A. L. Ry. Co. v. Anniston Mfg. Co., 186 Ala. 264, 65 South. 187, and is exhaustively treated in the note to Ecroyd v. Coggeshall, 79 Am. St. Rep. 741. See, also, note to Davis v. Davis, 130 Am. St. Rep. 1035; Eastman v. Parkinson, 133 Wis. 375, 113 N. W. 049, 13 L. R. A. (N. S.) 725; 6 Pom. Eq. Jur. § 680. We enter into no discussion of that doctrine here. It is fully discussed in the above-cited authorities, and a further discussion here would be but a reiteration of what is therein stated. We are of the opinion that a reference to these cases will sufficiently disclose that the averments of the bill in the instant case, with the exhibits thereto, clearly do not bring the case within the influence of that doctrine. It therefore ap- • pears that complainant is not entitled to the special relief prayed, seeking a cancellation of the deed. In their supplemental brief, counsel for appellant place much reliance upon the case of N. Y. Cent. etc., Ry. v. Gray, 239 U. S. 583, 36 Sup. Ct. 176, 60 L. Ed. 451. There the court had for consideration a contract between Gray and the railroad by which the former was to be paid $150 in cash for certain services — the services being valued at $750 — and the balance in transportation. The contract was complied with until the act of Congress was passed prohibiting any special rates or fares to individuals for transportation, and, after the passage of this act, the railroad declined to carry out the agreement because in violation of the federal law. Gray brought suit for the unpaid balance of the agreed price, and recovered judgment. The court held that the railroad acted iu accordance with the law in declining further transportation, adding, however, the following: “But there is nothing in the act to prevent or relieve a carrier from paying in money for something of value which it had long before received under a contract valid when made, even though the contract provided for payment in transportation which the passage of the act rendered thereafter illegal.” This case, however, is not, in our opinion, authority in'support of the equity of the bill here under review, wherein cancellation of the deed is sought, but rather indicating that the remedy is in an action at law. Whether complainant has an adequate remedy at law, and, if so whether the same is res adjudicata, need not be here determined. We are of the opinion the assignments of demurrer taking the point that the bill discloses no right or equity to impeach the conveyance or to have complainant entitled to a reconveyance is well taken, and the decree sustaining the demurrer will be here affirmed. Affirmed. ANDERSON, O. J., and McOLELDAN and SOMERVILLE, JJ., concur.