Knopf v. Richmond, F. & P. R. R.

Lewis, P., delivered the opinion of the court. This was an action of trespass on the case in the circuit court of Caroline county against the Richmond, Fredericksburg & Potomac Railroad Company to recover damages for the alleged wrongful ejectment of the plaintiff, M. M. Knopf, from one of the passenger trains of the defendant company, on the 27th of January, 1887. The plaintiff claimed the right to be trans [775] ported by the said company in the train from which he was ejected by virtue of a certain written contract, dated the fourth day of April, 1885, and of which the following is a copy: This agreement, made and entered into the fourth day of April, 1885, between the Richmond, Fredericksburg and Potomac Railroad Company of the first part, and the firm known and designated as Knopf Bros. & Co., of Caroline county, Virginia, whereof Jacob Knopf, C. E. Knopf, A. G. Knopf, and M. M. Knopf are the individual members, of the second part, witnesseth: That for and in consideration of the sum of one dollar, paid to the second party by the first party (the receipt whereof is hereby acknowledged), and for the further consideration of a ticket entitling either one of the said Knopfs, but only one on any train, to occupy one seat and travel on the passenger trains of said railroad company between Richmond and Quantico, without charge, that said first party may enter upon and take away from a tract of land lying west of said line of railroad, between it and the Mattaponi river, and opposite, or nearly so, to the turn-out known and designated as Baylor’s, and extending from near the north and to near the south end of same, or a few hundred yards beyond these limits in either direction, the gravel required for the purposes of the said first party (but not for sale by the said first party to another), provided that the area of said land taken from said tract in any one year, beginning with the date of this agreement, shall not exceed one-half an acre. It is understood that this arrangement shall continue in any event for one year from said date and thereafter, either until said railroad company shall be double-tracked or voluntarily relinquish the use of and retire from the tract aforesaid, and remove therefrom its tracks and cars, or until the said firm or its members shall sell out, convey, or otherwise relinquish the fee-simple in said tract of land to other parties or persons than any named in this deed, and no longer. And it is covenanted and affirmed by [776] the said second party that they are the lawful and sole owners of the said tract of land; that they have the right to convey it or any part of it; that they have not given any lien or placed any incumbrance upon the same, and that the first party shall have peaceful possession of the premises for the purposes aforesaid, according to the terms of this agreement, which shall be held to cover all claims for damages 'or compensation incident to connect with or otherwise arising from the removal of said gravel by the party of the first part in executing the work contemplated by this agreement. Witness the following signatures and seals on the day and year first above written. Knopf Bros. & Co., [Seal.] The Richmond, Fredericksburg and Potomac Railroad Go., By E. T. D. Myers, Gen. Sup’t. [Seal of the company.] The plaintiff was a member of the firm of Knopf Bros. & Co., and the question is as to the true construction of the said contract. The facts are not certified • nor is the evidence, and the case turns upon the action of the circuit court, at the trial, in refusing to give to the jury certain instructions asked for by the plaintiff, and in giving certain instructions offered by the defendant. It is clear, we think, that according to the true interpretation of the contract not more than one member of the firm could ride at the same time on the same train, and that not more than one could ride at the same time on any train. The expressed consideration of the contract is “ a ticket, entitling either one of the said Knopfs, but only one on any train, to occupy one seat and travel on the passenger trains ” of the defendant company, which shows with reasonable certainty that not only was the right to he carried restricted- to one member of the firm at a time, but that the evidence of that right was to he a ticket, to be [777] presented to the conductor of every train upon which any one of the firm should take passage during the continuance of the contract aforesaid. The firm was entitled to “ a ticket,” and not more than one. It is admitted that, immediately after the execution of the contract, a ticket, i. e., an annual pass over the road of the defendant company, was issued from the general office of the company to the firm, which ticket, by its terms, was to expire, and did expire, on the 81st day of December of the same year, and that upon its expiration a reneioal of the ticket was applied for by the firm. It is also admitted that after the expiration of the renewed ticket, no application was made to the company by the firm for a ticket of any kind, and that when the plaintiff was ejected from the train of the defendant as aforesaid, he was on his way to the city of Richmond from Milford station on' the defendant’s road, and that he offered no ticket to the conductor, or evidence of any kind of his right to ride, and in point of fact had none; nor is it claimed that he was expelled from the train by the use of any greater force than was reasonable and necessary. The question was discussed at the bar whether or not it was the duty of the firm to have applied to the company for a renewal of the ticket or pass upon the expiration of the one issued for the year 1886, the year preceding the date of the alleged injuries, if it desired such renewal, or whether it was the duty of the company to have furnished it without such application, the contract continuing in full force. The latter view was contended for by counsel for the plaintiff, who insisted that the contract upon this point was ambiguous, and that it should in this particular be construed most strongly against the defendant. We think it was a question which could be properly determined in accordance with the practical construction put upon the contract by the parties themselves, and that the instructions of the court fairly left it to the jury to say what, upon the evidence, that construction was. In a recent case in the supreme court of [778] the United States it was held that the practical construction which the parties had put upon the terms of their own contract was not only to he regarded, hut that it must prevail over the literal meaning of the contract; and the rule is certainly a very just one. District of Columbia v. Gallaher, 124 U. S. 505. See also Topliff v. Topliff, 122 Id. 121; Kidwell v. B. & O. R. R. Co., 11 Gratt. 676; 1 Greenl. Ev. sec. 293. In Knick v. Knick, 75 Va. 12, the court, speaking hy Judge Burks, said: “ Although when the meaning of an instrument is clear, an erroneous construction of it hy the parties will not control its effect, yet, where there is doubt as to the proper meaning of it, the construction which the parties have put upon it is said to he entitled to great consideration”; citing Bank of Old Dominion v. McVeigh, 32 Gratt. 530; Railroad Company v. Trimble, 10 Wall. 367. We have carefully examined the numerous instructions which were given to the jury, and also those which were refused, and without commenting upon them seriatim, it is enough to say we are of opinion that there is nothing in the action of the circuit court, as disclosed hy the record, of which the plaintiff can justly complain. In other words, the case was substantially submitted to the jury in accordance with the views expressed in this opinion. The jury found for the defendant, and the judgment upon the verdict is accordingly affirmed. Carpenter v. Washington, &c., Railroad, 121 U. S. 474. JUDSMBNT AFFIRMED.