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fraud, misrepresentation, or other dishonest practice on the part of the opposite party, the company are not liable. (q)

217. As to what is a sufficient compliance with the Statute of Frauds; where an order is given by a railway company for goods of more than 107. value, some of which are ready made at the time of the contract, and the rest are to be manufactured according to order, and the goods which are ready made are afterwards delivered and paid for, the acceptance of them is a part acceptance of the whole, such as satisfies the provisions of the Statute of Frauds, 29 Car. 2, c. 3, s. 17, and the 9 Geo. 4, c. 14, s. 7, as the whole forms one entire contract. (1)

218. 2ndly. The same laws of construction are applicable to the contracts of railway companies as to those of ordinary persons. The intention of the parties accordingly, as it is collected from the entire agreement, must be taken as the governing principle of interpretation in regard of all (s) such con

(9) Hill v. Manchester and Salford Water Works Company, 2 B. & Ad. 544; case of same name, 5 B. & Ad. 866; Clarke v. Imperial Gas Light and Coke Company, 4 B. & Ad. 315.

(r) Scott v. Eastern Counties Railway Company, 12 M. & W. 33.

(s) Jones v. The Great Western Railway Company, 1 Railw. Cas. 684. In that case there was an agreement for the purchase of a portion of a field by the company for 2291.; 1201. for the land, and 1091. for compensation for damage. The agreement contained a stipulation that in case additional land was wanted it should be taken and paid for at the same rate per acre. It was held that the company, upon their wanting a second portion of the same field, were to pay for it at the same rate per acre as for the former piece, and likewise for the damage that might be


tracts. A contract for the supply of locomotive engines contained a provision that each engine should be subject to the performance of a distance of 1000 miles with proper loads, and that a month should be allowed for the trial, during which time the manufacturers were to be liable for any breakage which might occur, if arising from defective materials or workmanship; but that if the company did not avail themselves of the trial, or it proved satisfactory, the manufacturers should be released from all further responsibility in respect of the engines. It was also agreed that the fire-boxes should be made of copper 7-16ths of an inch thick, and that the best materials and workmanship should be used. It was held that the obvious intention of the parties was by the trial to put an end to all questions as to the quality of the work and materials, and that consequently, after the trial was over and had proved satisfactory, the company could not, in the absence of fraud, take any objection on that score, though nine months afterwards one of the fire-boxes burst, when it was discovered that the copper was reduced to the thickness of 3-16ths of an inch. (t)

219. 3rdly. A contract to which a railway company is a party carries with it the like incidents as an ordinary contract. Where there is a condition precedent imposed by the contract on the opposite party, he must show it to have been performed or dispensed with, to entitle himself to recover against the com

done by the severance in addition; as the former payment could not be meant to include the damage.

(1) Sharpe v. Great Western Railway Company, 2 Railw. Cas. 722; S. C. 9 M. & W.7.

pany. (u) As for instance, where a railway company contract for a supply of ballast to be screened to their engineer's satisfaction, they are not liable upon such contract, unless the ballast is in point of fact shown to have been screened to the engineer's satisfaction. (x)

220. Equity will relieve against fraud, breach of contract, or oppression in a railway company as much as in an ordinary person. (y) Suppose therefore that a party contract with a railway company for the performance of certain work, and that by the terms of the contract the engineer, or other officer of the company, is constituted judge of the amount of work from time to time done by the contractor, in order to the apportionment of the payments accordingly, the latter may go into equity for relief, if it appear that the engineer, &c. by his mode of estimating the works, does not give him all that he is entitled to claim under the contract, the investigation requisite to determine this point being of a character that can only take place under the superintendence of a court of equity, and being impossible to be made in a court of law. (y)

221. So where in an ordinary case a court of equity would decree the specific performance of a contract, they will do so against a railway company, as for instance, where there is a contract by the company to do certain defined work on their own

(u) Parkes v. The Great Western Railway Company, 3 Railw. Cas. 17; S. C. 6 Jur. 628.

(1) Ibid.

(y) Ranger v. The Great Western Railway Company, 1 Rail. Cas. 1; S. C. 3 Railw. Cas. 298.

land, in the performance of which the opposite party has so material an interest, that its non-performance cannot be adequately compensated by damages at law. (z)

222. If a railway company (a) agree for the purchase of land, they stand in the position of any ordinary purchaser. Supposing therefore the company deliberately take possession before the purchase is complete, and this without the consent of the owner, as a general rule, they become liable to perform the contract specifically on their part, and may at the same time be restrained from retaining such possession until the purchase money is paid into court. (b) And the court may order the money to be paid in, though the company are willing to give up the possession. (c) This, however, does not apply to a case where the acts relied on as constituting a taking possession on the part of the company have been done under a mistake, and when the company subsequently do all that they can to rectify the mistake. (d)

(*) Storer v. The Great Western Railway Company, 3 Railw. Cas. 106; S. C. 2 Y. & C. N. C. 48; see ante, p. 123.

(a) As to the liability the company incur by giving a notice of their intention to take lands under their act, see post, sub-sect. 7, p. 199. As to their liability for compensation money assessed by a jury, and the mode of enforcing the same, see same sub-sect. post.

(b) Hyde v. The Great Western Railway Company, 1 Railw. Cas. 278; Robertson v. The Great Western Railway Company, ibid. 459.

(c) Judgment of Vice-Chancellor in Tomlinson v. The Manchester and Birmingham Railway Company, 2 Railw. Cas. 104. (d) Tomlinson v. The Manchester and Birmingham Railway Company, 2 Railw. Cas. 104.

223. If a railway company contract for the purchase of land, which may or may not be eventually required for the purposes of their act, the company being undetermined whether to carry their line through the land in question, or in a direction to avoid it (in which latter case, of course, their authority to purchase such land under their act would be at an end), a court of equity would hardly, it is conceived, decree a specific performance of such a contract while this state of things continues, as the effect might be to thrust upon the company as purchasers land which in the event they might prove incapable of taking. (e) Not but what if the owner could show that, owing to the conduct of the company, he has been incapacitated from applying his land to some profitable use as he otherwise might have done; or that he has been led on by the company to give up in their favour some particular speculation that he had formed for employing his property; he might perhaps in those respects be entitled to relief, if he shaped his complaint accordingly. (f)

II. Of the Liabilities of a Railway Company
in Tort.

224. It is proposed in the next place to treat of the liabilities of railway companies ex delicto; and here three questions suggest themselves for our consideration. 1st, how far a railway company is capable of committing a tort; 2ndly, when a tort can be considered to be the public act of the company as

(e) See Tomlinson v. The Manchester and Birmingham Railway Company, 2 Railw. Cas. 104.

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