Borough of Shamokin v. Shamokin Street Railway Co.

Opinion by Mr. Justice Williams, This is an action on a contract.. The terms of the contract are to be found in the provisions of an ordinance of the borough of Shamokin granting leave to the defendant company to occupy certain streets in said borougli with its line of street railway. This ordinance was duly accepted by the company, and under its authority the line of street- railway was built upon the several streets to which it related, including Shamokin street. By the acceptance of this ordinance the defendant company undertook to lay its track upon the grade of the streets it should [132] occupy; to “ maintain and keep in repair a roadbed four and a half feet in width from the center of their track, on either side of said center ” on all such streets; to use the same material in making such repairs that the borough might use for the same purpose, or such other material as the borough should approve; and that the company would, on being notified so to do for fifteen days before the work was to begin, join with the borough in the improvement of any street by repairing or macadamizing as the borough might elect, and repair or macadamize the nine feet of roadbed provided for by the ordinance at its own cost. No notice that the track was not laid upon the grade of the . streets was required to be given to the company. The right to build was granted upon the express condition that this should be done. . If the track was not so laid it was without any right in the street, and was an unauthorized obstruction to the public travel over it.. A notice was required only when action was to be taken by. the borough for the repair or macadamizing of a street over which the defendant’s line passed; and the object of the notice was to make it practicable for the borough and the railway conn pany to proceed with the proposed improvement at the same time, so that the work might be done in the most convenient, economical and expeditious manner. The breaches of this contract for which the plaintiff claims in its statement of its cause of action to recover in this case are 'the failure to repair and to pave after notice. Evidence was offered tending to show that the street railway track on Shamokin street was not laid on the proper grade; that the street was out of repair; that the borough decided to repair it and to pave it with asphaltum; that notices were given to the defendant company of the condition of its track, and of the street, and of the purpose to pave with asphaltum; that these were disregarded by the company; in consequence of which the work was all done by the borough. Upon this state of facts the plaintiff asked to recover from the defendant company the cost of the work done by it which' it was the duty of the defendant, under the terms of its contract, to have done. The answer made by the defendant .does not deny the contract, nor that work was done as charged in. the statement, but alleges that the borough adopted a mode of pavement for Shamokin street not contemplated by the contract and for which the defendant is not liable. [133] The defense is substantially this: “ Yon asked us to do more than we were bound to do, and for that reason we will do nothing. It' is true we were bound to put our track on the grade of the street, to repair the street, to pave it with macadam, but when all the preliminary work was done you put down asphaltum instead of macadam. This not only relieves us from the cost of the asphaltum but releases us from the obligation to do what our contract required us to do.” The learned trial judge seems to have adopted this view of the defendant’s liability, as the rulings complained of in the several assignments of error rest on the fact that the pavement was not such as the contract provided for. We agree with the learned trial judge that it was not in the power of the borough to change the contract and increase the liability of the defendant without its consent. The attempt to do this must of course fail. But the effort to impose an additional liability cannot operate to release the defendant from its contract. That remains in full force. By its express terms the defendant was bound to place its track on the grade of the street. It was served with a notice, to which it was not entitled, requiring this to be done, but it left the work for the borough to do. For this it is clearly liable. It was served with a notice to •repair and pave Shamokin street. To this it was entitled. As to all the work contemplated by it except the putting down of asphaltum it was bound under its contract. It did nothing. All that was rightly done by the borough after the notice to repair and pave was served, except that which was rendered necessary by the adoption of the asphaltum in place of macadam, is within the spirit and the letter of the contract, and for the proper share of the expenses incurred in so much of the work done the plaintiff is entitled to recover. The action of the borough was a determination that the street needed repair and a pavement. This was binding on the railway company. If a macadam pavement had been adopted,the railway company would have been bound to join in putting it down or to pay the cost to the borough with a penalty of twenty per cent added. But the borough substituted another kind of pavement which the defendant had not contracted to be liable for. In' so far it exceeded its authority under the contract, and to the extent of this excess it cannot [134] relieve the borough treasury by calling on the defendant under the terms of the ordinance. The assignments of error relating to this question are sustained, the judgment is reversed and a venire facias de novo is awarded.