Cowley v. Northern Pacific Railway Co.

Citations

• 68 Wash. 558
• 123 P. 998
• 1912 Wash. LEXIS 1330

Syllabus

<p>Caeeiees — Regulation—Commeece—Special Peivileges — Passes —Inteestate Commerce Act — Effect on Peioe Contbacts. The commerce act, II. S. Comp. St., Supp. 1909, pp. 1149-1153, § 6, prohibiting carriers from charging any greater or less fee for transportation than the rates and fares specified in their published tariffs, or from extending any other privileges, renders inoperative a prior contract whereby the railroad company, in consideration of land conveyed to it, agreed to give the grantor annual passes for the rest of his life; since the same must have been made subject to the constitutional power of congress to regulate interstate commerce.</p> <p>Cancellation of Instbuments — Disceetion—Equity. Where a contract for annual passes in consideration of the conveyance of property has become illegal by reason of the commerce act of 1887, the contract has been substantially performed, and the property has greatly increased in value, a court of equity will not decree a rescission and restitution of the property; rescission resting upon discretion and not absolute right.</p> <p>Caeeiees — Contbact foe Passes — Bbeach—Damages—Defenses— Illegality of Contbact. Where, after substantial performance, a contract for annual passes became illegal through the operation of the commerce act of 1887, the railroad company cannot be held for damages for failure to further perform the contract.</p> <p>Appeal — Review—Right to Allege Ebeoe — Eeboe Invited. The remark of defendant’s counsel, in an action for rescission of a contract for annual passes, that he would consent that the court reach a just measure of damages, will not be held to waive the right to appeal from an erroneous judgment for damages, where it appears from the certificate of the trial judge that he was not influenced by the remark, and where the plaintiff was not content with the damages awarded, but appealed from the refusal to grant rescission, and the defendant also appealed.</p>