1. Contract: construction: railroad company. — The real point in controvérsy between the parties in this case is as to the construction of the original an(i supplemental contracts set forth in the foregoing statement. The plaintiffs claim the right to handle all grain brought in on the Dubuque & Sioux City railroad, and not designed for actual consumption or manufacture at Dubuque. While the defendants claim that the plaintiffs are entitled to handle only such grain as is not otherwise consigned, than to their elevator.

Upon the trial, the court, to aid in the construction of the contracts, admitted testimony offered by the plaintiffs, tending' to show the facts and circumstances surrounding the parties at the time the contracts were made; and also to show the practice of the parties thereunder for several years, as illustrative of the construction they mutually placed thereon. This testimony, however, was not permitted to go to the jury, but was expressly excluded from them. In our view, the contracts would receive the same construction either with or without the testimony; or, in other words, the testimony does not affect the true construction, and therefore no prejudice has resulted to either party by its admission, and the errors assigned thereon by the defendants cannot be sustained.

The Dubxxque & Sioux City railroad has its eastern terminus on the west bank of the Mississippi river, in the city of Dubuque, and extends thence westward. At Farley, a town about twenty miles west from Dubuqxxe, the Dubxxque Soxxthwestern railroad forms a junction with the Dubuque & Sioux City railroad, and runs soxxth-westei'ly therefrom. The elevator building was erected on the lands of the Dubuque & Sioux City Nail- [*197] road company, at its eastern terminus on the bank of the river. The elevator is mainly a means or instrumentality for loading and unloading grain into and out of cars, boats, barges or other vehicles, and incidentally for storing'the same; it is in no just sense a connecting line of transit or connecting common carrier to the defendants’ lines.

The original contract between the Dubuque & Sioux City Nailroad company, and the Dubuque Elevator company contains, in substance, these respective stipulations or covenants: By the railroad company: first, to lease the ground; second, to secure the elevator company in tlie .exclusive and peaceable possession of the same, so long as they abide by, and perform their covenants of the lease; third, that they will not erect a similar building; and fourth, that they will not lease to any' other party for the erection of such a building. By the elevator company: first, that they will erect an elevator building for handling all grain received by the ears of the railroad company, not otherwise consigned, and add to it as business may require; second, that they will pay five dollars yearly rent; third, that they will conduct business upon the same terms, and charge the same rates as is clone in Chicago from time i,o time; fourth, that they will, at the option of the railroad company, accept a renewal of the lease for fifteen years, or the appraised value of their building and appurtenances.

From this analysis of the contract, it is readily seen that the railroad company did not hind itself to furnish any grain whatever to the elevator company; nor did the elevator company bind itself to make provision for handling any grain except that “not otherwise consigned.” It was therefore apparent, when the supplemental contract was made, that the elevator company had a large smn invested in a building, fixtures, and appurtenances, [*198] on the land of another, 'without any actual guarantee of any business whatever. And, on the other hand, the railroad company had their grounds occupied by another corporation which was under no obligation to provide buildings and fixtures for handling any grain for them, nor was there any definite price fixed for the handling of the grain they were bound to handle. It is not strange, therefore, that the parties should mutually wish further respective covenants.

Four months and two days after the original contract was made, we accordingly find the parties making a supplement to their manifestly defective original contract. In view of the shortness of the time, and the magnitude of the structure, it is highly probable that the elevator had been completely ready for operation only a very short time prior to the making of the supplemental contract. By the supplement the parties respectively stipulated as follows: The elevator company: first, that they would receive and discharge all through grain, — that is, in addition to or instead of their original covenant to provide buildings, etc., for handling all grain not otherwise consigned, they now agree to provide buildings, etc., and to receive and discharge all through grain; second, that they will only charge one cent a bushel f<4? handling, nothing for storage for first ten days, one cent a bushel for the next ten or fraction thereof, and one-half eont for every additional ten days or fraction thereof. The railroad company: first, that the elevator shall have the handling of all through grain; second, that the railroad company would pay the stipulated price for handling and storage. And they mutually agree that the supplement shall continue in force as long as the original contract.

Taking this analysis, and the rule of construction, about which the opposing counsel do not differ, that the whole of the covenants or instruments shall be taken and con [*199] strued together, we have no difficulty so far, and there remain but two further points for consideration. First, what is meant by the term, “ the cars of said ¡railroad company,” contained in the first covenant of the elevator company in the original contract;, and the term “the Dubuque and Sioux City Railroad company,” in the first clause of the supplement ? Does the first mean the cars owned by said railroad company, or the cars used by them in transporting grain over their road ? To hold that it meant the former, would be giving the words a narrow, forced, and unusual construction, as well as placing it in the power of the company to entirely evade their covenant, by using the hired or borrowed cars of another company. While, to hold that it means the latter, to wit, the ears used by them in transporting the grain over their road, is giving the words their ordinary meaning, and also giving prominence to the subject-matter of the contract, to wit, the grain, rather than the vehicle in which it may be carried.

So, also, as to the term quoted last above from the supplement, the grain is to be received and discharged “ for the Dubuque and Sioux City Railroad company.” It can make no difference as to whose cars the grain may be transported in, whether it is in the cars owned by that company, or by one of the railroad corporations with which it may connect or have running arrangements.

Secondly, what is meant by “ all through grain ” ? It is said that the word “ through ” may have, in this connection, three different meanings, to wit: through to the end of the line of the Dubuque and Sioux City railroad, which is simply to Dubuque; or, through Dubuque to soine other point beyond, ultimately, although consigned to Dubuque for the present; or, through Dubuque to some point beyond, by the terms of shipment. Taking the term in its most natural signification as applied to [*200] the subject matter and purpose of the contract, we have no difficulty in holding that it means the latter. To hold that it meant the first, as stated, would be to give no meaning at all to the word “ through,” for it would, of necessity mean all grain arriving at Dubuque, and the term “ all grain,” would express the idea as completely as “ all through grain.” To hold that it meant the second, as stated above, would involve the parties ia endless controversies as to the identity of grain, and the subject matter of the contract would always be in move or less doubt. But it is also clear, beyond question, that it would not be competent for the railroad company to have the grain consigned to consignees in Dubuque, for the purpose of evading the contract, or for any other than an actual and legitimate commercial purpose in the ordinary course of business.

We are now prepared to state succinctly the construction to be given to the whole contract. The plaintiffs are entitled to handle in their elevator all grain coming over defendants’ railroad, whether in its own cars or the ears of the Dubuque Southwestern railroad, or any other-connecting road, primarily shipped .for points beyond or other than Dubuque, and to have therefor the price stipulated from the defendants.

This is the construction given to the contract by the District Court, except that court held that the plaintiffs were not entitled to handle the grain coming over the road from and in the cars of the Dubuque Southwestern railroad. Thus holding, the District Court required the plaintiffs to rebate from the verdict the amount manifestly allowed by the jury for grain transported by defendants over their road in the cars of the Dubuque Southwestern railroad. The plaintiffs duly excepted to such holding and ruling, and appealed therefrom, assigning the same as error. The plaintiffs’ appeal is, therefore, sus [*201] tained to this extent, and the judgment will he corrected accordingly.

2._contracts against public policy: monopolies. But it is argued by defendants’ counsel that this construction of the contract will render it void, by reason of being, when thus construed, in contravention of sound public policy; that sound public policy, as also the law maintaining and enforcing it, abhors a monopoly; and that the construction, as above set forth, gives to the elevator a monopoly of handling all the through grain brought on the road of defendants. "Without deciding what the law is upon the question of monopoly, suppose it to be conceded as claimed, what then? The defendants, as common carriers of grain over their line of road, were bound to unload it from their cars when they reached the terminus of the line on the bank of the river which there formed a barrier to their being run further. To unload the grain with ordinary shovels and manual labor was necessarily tedious, expensive and wasteful. The manner or means of discharging the grain was legitimately and properly within the discretion of the carrier, and the shipper or consignor could not rightfully control the carrier in that particular (provided no prejudice resulted to him) any more than he could control as to the structure of the steam engine, or the fuel to be used in the hauling of the cars over the road. "While the consignor has, most unquestionably, the right to direct and control as to which of the two or more connecting lines shall receive his consignment, yet that is a very different question from controlling the manner in which the carrier shall perform his undertaking. And if the carrier shall make his contract with one laborer, or with a certain number of laborers, whereby, in consideration of having the unloading of all the grain, he or they will do it at a certain price, such contract could hardly be called the giving of a monopoly. "Whether the employee [*202] be one or many laborers, or be the proprietors of an elevator, can make no difference upon the question of monopoly. But further than this, the power of courts to declare a contract void for being in contravention of sound public policy, is a very delicate and undefined power, and like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt. The fact, that, by reason of the development of the country, or the great improvement of the means of transit, or other cause, a contract becomes a hard or profitless one, will not justify a court in absolving either party from its performance. Courts simply declare and enforce the law as applied to the contract of the parties; they do not grant indulgences, or absolve from valid obligations.

3. _measure of damages. Upon the subject of damages, the plaintiffs’ counsel asked the court to instruct the jury, that if the defend-ants, without any default upon the part of plaintiffs, passed any grain through Dubuque, coming in over their road, without allowing the plaintiffs’ elevator to handle the same, then the measure of damages would be one cent for every bushel of grain thus passed. This the court refused to give, and rightly so, and plaintiffs excepted. The defendants asked the following instruction : “ That by the terms of the contract, the plaintiffs are entitled to one cent a bushel for all grain which they handle; but this will not be the measure of damages as to grain shipped past their elevator, and for which they are entitled to damages, but as to such grain the plaintiffs can only recover such damages as they have proved; and having offered no evidence of damages except the contract, then they are only entitled to nominal damages, or one cent.” This the court also refused to give; doubtless because of the concluding paragraph asserting that there was no evidence on that subject. The transcript before us contains some evidence, but it is not [*203] certified as containing all the evidence, and hence we cannot determine that the court erred in refusing the instruction, even if it be conceded to contain the correct rule of law.

The court then gave to the jury its instructions upon the subject of damages, to so much of which as here follows the defendant duly excepted: “ If the plaintiffs were prepared to handle the grain, and had hands ready for that purpose, and power in operation, so that they could have handled the grain they were entitled to, without any additional cost over and above what they were at in keeping themselves in readiness to handle the same, according to contract, then the price fixed by the contract might be a fair criterion of the damages ; but, if not, then so much from such price should be deducted as would cover the actual cost of such handling bjr the plaintiffs, the balance of the price fixed, over such actual cost, being the damages.”

As above remarked, we have not all the evidence before us, and cannot, therefore, know what evidence this instruction was based - upon. There is, however, in the transcript, evidence tending to show that during the time the defendants were running the grain in controversy through, without using the elevator, they were also using the elevator for other grain not in controversy, and it also appears that the plaintiffs were at all times prepared and in readiness to pass the grain in controversy through the elevator. But, regardless of this, since we have not all the evidence before us, we would be bound, nothing appearing to the contrary, to presume that there was proper and sufficient evidence upon which to base the instruction given by the court.

Most unquestionably, the true measure of damages in this case, is the difference between the cost of handling the grain in the elevator and the price stipulated to be [*204] paid therefor. And this rule was, in substance, expressed in the latter part of the instruction given by the court. As to the first part of that instruction, it expresses also the true rule as applicable to the hypothesis of fact contained in it. If the plaintiffs, in order to handle the grain which was actually furnished them, were required to and did have the hands and the power employed, which could, without further expense, also have done the additional handling of the grain which defendants wrongfully refused to allow them to handle, then they ought to recover the full price for the grain thus refused them. For then they recover according to the rule above stated, to wit, the difference between the cost of handling and the price; since, upon the hypothesis stated, the cost of handling would be nothing. And the jury have so found.

There was no error, therefore, in the instructions upon the measure of damages.

As to the other instructions given and refused, they were based upon the construction given the contract as hereinbefore shown, and the errors assigned thereon have been disposed of in settling the true construction of the contract. It follows that there was no error to defendant’s prejudice, and their appeal is, therefore, not sustained.

As to plaintiff’s appeal the judgment is

Reversed.

As to defendant’s appeal, the judgment is

Affirmed.

— In concurring, after some hesitation and doubt, in that portion of the opinion relating to the instructions given and refused as to the rule of damages, I desire to add that I do so in view of the state of the record, and to say that I do not understand the opinion as holding that the rule therein stated would necessarily be the true rule under a different state of facts. For instance, [*205] were tlie plaintiffs notified by the defendants, that, by reason of a bridge over the river, or by reason of their preferring to transfer the grain across the river directly in the cars by running the latter to boats, they would hereafter furnish the plaintiffs with no more grain under the contract, the latter would not then be justified, as I* think, in keeping a force of hands on pay, doing nothing, during the remainder of the contract term, with a view to claim one cent per bushel for each and every bushel of grain that might, during that period, pass over the defendants’ road. In such a case it might be the right, if not the duty, of the plaintiffs to declare as for a total breach of the contract, and recover in one action damages for the whole contract period. And in such a case, and indeed in any case, it would be the duty of the plaintiff’s not to adopt or pursue a course which would make the damages unnecessarily large.

If, without such a notice, there shall be a distinct breach of the contract by the defendant, whether the plaintiffs may bring a distinct action for each car load of grain that they are wrongfully prevented from handling, or whether they can sue but once, and in that suit must claim damages for the entire space of time covered by the contract, is also a question not involved even incidentally in the present appeal, and upon which, as I understand, no opinion of the court is given or is to be inferred.