This is a real action. No formal plea has been filed; but, by agreement of the parties stated in oral argument, the facts alleged in the answers of the defendants to the plaintiff's bill in chancery, so far as material to their defence in this action, are to be treated as if formally pleaded. The actions were heard and submitted together. The defendants, in their answers, in substance set forth the instrument of June 22, 1887, deny that the Lowell assigned its estate or parted with the possession or control of the plaintiff's road to the Maine, and aver that the Lowell is the owner of the lease of June 19, 1881, in possession of the plaintiff's road under it, performing its duties and covenants to the plaintiff.
The plaintiff, June 19, 1884, leased its railroad to the Lowell for ninety-nine years from the first day of the month, and the Lowell covenanted in the lease not to assign, underlet, or part with the possession of the demised premises, except with the written consent of the plaintiff. The lease of the Lowell to the Maine is *Page 461 dated June 22, 1887, and is for ninety-nine years from the first day of the preceding April. The date of the lease is prima facie evidence of the time of its execution, and it will be presumed to have been delivered on the day of its date, unless the contrary is proved. I Bac. Abr. 57; Wood Land. T., s. 223; Sweetser v. Lowell, 33 Me. 446, 452; Seymour v. Van Slyck, 8 Wend. 403, 414; People v. Snyder, 41 N.Y. 397.
The plaintiff claims that the Lowell has broken its covenants and forfeited the lease by assigning, and brings this action to recover the premises. If the plaintiff's claim of forfeiture is admitted, it waived it by collecting the rent which became due after the breach, knowing that it had been committed. Tay. L. T., s. 497; Croft v. Lumley, 5 E. B. 648; Arnsby v. Woodward, 6 B. . C. 519; Ireland v. Nichols, 46 N.Y. 413; Garnhart v. Finney, 40 Mo. 449 — S.C., 93 Am. Dec. 303; Gomber v. Hackett, 6 Wis. 323 — S.C., 70 Am. Dec. 467, Coon v. Brickett, 2 N.H. 163.
But it is said there is no evidence showing that the plaintiff had knowledge of the provisions or existence of the Lowell's lease to the Maine prior to October 11, 1887. It is true that by reason of an obvious inadvertence, the case does not afford formal proof of such knowledge; but this does not seem to be of controlling importance, as railroads are public corporations, and those in whom they are vested, so far as the public is concerned, are public agents (Gen. Laws., c. 160, s. 1, 2, 3), and inasmuch as it does not admit of contradiction that the fact of the lease and its provisions were matters of general knowledge, and had become so well known in this jurisdiction prior to the receipt of rent in September, 1887 as to be notorious. Lanfear v. Mestier, 18 La. Ann. 497 — S.C., 89 Am. Dec. 668, 663, 664, 667, 676, 681, 682, 694, 696, and authorities cited in the note; State v. Moffitt, 73 Me. 278; Temple v. State, 15 Tex. Ct. App. 304 — S.C., 49 Am. Rep., note, 201, 203, 204; Opinion of the Justices,35 N.H. 579, 580; Opinion of the Justices, 45 N.H. 607; Lake Company v. Young, 40 N.H. 420, 430; Wells v. Company, 47 N.H. 235, 260; Division of Howard County, 15 Kan. 194; Cool. Con. Lim. 135; Moody v. State,48 Ala. 115; Hall v. Brown, 58 N.H. 93, 95; 1 Gr. Ev., s. 6; U.S. v. Teschmaker, 22 How. 392; Romero v. U.S., 1 Wall. 721; Const. Part II, art. 24; Gen. Laws, c. 4., ss. 10, 11; House Journal, June session, 1887, pp. 75, 77, 80, 108, 116, 123, 470, 481, 483, 484, 486, 487, 488, 490, 491, 981; Argument of W. M. Chase before Railroad Com., June 23, 1887, pp. 1, 11, 14-17, printed and published in pamphlet; Argument of Harry Bingham before the same committee, August 10, 1887, pp. 3, 5, 15, 18, 20, 21, 25, printed and published in pamphlet.
If the plaintiff was not technically chargeable with knowledge on the evidence appearing in the case, justice, as well as the established *Page 462 practice of the court, required that it should be reopened and the defendant allowed to make formal proof of the fact. Canaan v. Derush,47 N.H. 212, 215; Wells v. Company, 48 N.H. 491, 526; Page v. Brewsters, 54 N.H. 184, 187; State v. Cashman, 62 N.H. 697; Bullard v. Railroad, 64 N.H. 27, 36; Chamberlain v. Lyndeborough,64 N.H. 563, 565.
The bill in equity was brought to obtain, on different grounds, the same result as the real action, and it received much attention in its preparation and in the argument. It was dismissed by the court; and it may well be inferred that the defendants gave their attention to that case, and unconsciously neglected to make the preparation in this that they would have made had they been sure their rights were to be determined in it. The court, of its own motion, considered the advisability of leaving open the question of waiver as a similar question was left open in Chamberlain v. Lyndeborough, ante, but it was denied. The facts, as well as the law, were to be determined by the court in both actions, and the parties did not know with the usual certainty what questions of law or fact might become especially material, and could not well anticipate the importance that the question of waiver assumed. The defendants were guilty of no laches, and might well rely on the established practice of leaving similar questions open for further proof if found desirable to make it, and no presumption of fact adverse to them should be made. Certainly, the fact that the defendants did not make all application, does not show the non-existence of a waiver or of the evidence to prove one. This, however, is of slight importance, as the court will take notice of facts which are notorious without formal proof being made.
The claim that the Lowell forfeited the plaintiff's lease by executing the one to the Maine is of strict legal right, to which the rules of the common law apply, — that conditions subsequent are not favored in law, and are to be construed strictly because they tend to destroy estates, and the plaintiff, to defeat the lease of its own creation, must show a breach strictly within its letter. Hoyt v. Kimball, 49 N.H. 322; Page v. Palmer,48 N.H. 385; McQuesten v. Morgan, 34 N.H. 400, 404; Chapin v. School District, 35 N.H. 445, 450, 452; Eddy v. Company, 65 N.H. 27; Mactier v. Osborn, 116 Mass. 401; Smith v. Putnam, 3 Pick. 221; Riggs v. Pursell,66 N. Y. 193, 200; Arnsby v. Woodward, 6 B. . C. 519; 4 Kent Com. 129; Jones v. Reed, 15 N.H. 68; Dumpor's Case, 1 Smith's L. C. 15; Crusoe v. Bugby, 2 Wm. Blackstone 766, Doe v. Hogg, 4 D. R. 226; Jackson v. Silvernail, 15 Johns. 278; Livingston v. Stickles, 7 Hill 253; Rosevelt v. Hopkins,33 N.Y. 81; Church v. Brown, 15 Ves. 258, 265; Tay. L. T., ss. 402, 403; Kinnersley v. Orpe, 1 Doug. 56.
It is an important inquiry whether the instrument in question is a lease, or an agreement for one, so far as the plaintiff's railroad is *Page 463 made the subject-matter of contract in it. This question is mainly one of intention. In the construction of written instruments, the intention of the parties is material, and, to ascertain it, resort may be had to the nature of the instrument itself, the situation of the parties executing it, the purpose they had in view, and the contemporaneous construction which they gave it. Corwin v. Hood, 58 N.H. 401; Rice v. Society, 56 N.H. 191, 197; Morse v. Morse, 58 N.H. 391; Brown v. Bartlett, 58 N.H. 511; Driscoll v. Green, 59 N.H. 101, 103; Kimball v. Lancaster, 60 N.H. 264; Atwood v. Cobb, 16 Pick. 227, 229; Richardson v. Palmer, 38 N.H. 212, 218.
If this evidence proves that the parties executing the instrument intended to convey the estate of the Lowell in the plaintiff's road in presenti, then it is a lease; but if it proves they did not, and that the intention was to make an agreement to convey, or a conveyance not to take effect unless something happened which might never occur and which had not occurred at the date of the plaintiff's writ, then it was such an agreement or conveyance. Houghton v. Pattee, 58 N.H. 326; Tay. L. T., ss. 37, 38, 39, 42; Wood Land T., ss. 183, 185. The latter, both upon the law and the evidence, seems to be the true interpretation, and justice requires this construction if it will avoid a forfeiture of the Lowell's estate, and it can be done without violating the intention of the parties. If the legal title to the Lowell's estate did not pass to the Maine, there was no assignment, underletting, or parting with the possession, as the physical possession and dominion of the Lowell continued unchanged. Neither an agreement to convey, nor an assignment of the lease to take effect when the lessor shall give its consent in writing, as provided in the plaintiff's lease, is a violation of the covenant against assigning or parting with the possession. Weatherall v. Geering, 12 Ves. 504, 511; Riggs v. Pursell,66 N. Y. 193, 200.
On the question whether a given instrument is a lease which conveys the estate, or all agreement for one which does not, the presence or absence of certain evidence has been held material, and in many instances decisive of what the finding should be. If the instrument contemplates the execution of a formal lease, or if anything remains to be done, or if there is the absence of words of present demise, or if the time fixed for the term to commence is uncertain, being dependent on an event which may never happen, or if construing the instrument a lease would work a forfeiture or render the instrument inoperative. it has usually been adjudged an agreement, and not a lease, especially in the last three instances. 4 Kent Com. 105; 1 Hill. Real Prop. 266, 266; Wood Land. T., ss. 183, 185; Buell v. Cook,4 Conn. 238; Atwood v. Cobb, 16 Pick. 227, 229; Doe v. Clare, 2 T. R. 739, 741; Goodtitle v. Way, 1 T. R. 735; Bromfield v. Smith, 6 East 530; Gore v. Lloyd, 12 M. W. 462; Roe v. Ashburner, 5 T. R. 163; *Page 464 Jackson v. Delacroix, 2 Wend. 433, 442; Bicknell v. Hood, 5 M. W. 104; Howard v. Carpenter, 11 Md. 259; Dunk v. Hunter, 5 B. Al. 322; Brashier v. Jackson, 6 M. W. 549, 556; Rawson V. Eicke, 7 A. E. 451; Jackson v. Moncrief, 5 Wend. 26, 29; Jackson v. Meyers, 3 Johns. 388, 394; Jackson v. Clark, 3 Johns. 424; Ives v. Ives, 13 Johns. 235; Chapman v. Towner, 6 M. W. 100, 104; McGrath v. Boston, 103 Mass. 369; Clayton v. Burtenshaw, 6 B. C. 41; Phillips v. Hartley, 3 a. P. 121; Weld v. Traip, 14 Gray 330, 333; People v. Gillis, 24 Wend. 201; Tempest v. Rawling, 13 East 18.
Many of these tests are found in the instrument executed by the Lowell and the Maine. The language of part one indicates the purpose of the parties to make an instrument containing both a lease and an agreement. The operative words used are grant, covenant, and agree, the first being a word commonly used in making a present demise, while the other two indicate an intention to make a contract or agreement under seal. If the parties had intended to make simply a lease, they would have indicated it by using the common words grant, demise, and lease, which they used in part one, the granting part of the instrument, but which are entirely omitted in part two where the agreement is found, and where the word covenant is the only operative word used. These words are properly used in these places, and correctly express the intention of the parties.
In the granting part of the instrument, the Lowell's estate in the plaintiff's railroad is not conveyed; on the contrary, it is specially excepted. The parties refer therein to the Lowell's inability to convey Without violating its agreements in the plaintiff's lease, and then except the plaintiff's road from the grant. This shows that both the Lowell and the Maine had in mind the Lowell's agreements as to assigning and subletting, and did not intend to violate them. The fact that the parties to the instrument specially excepted the plaintiff's railroad in the granting part, where its conveyance should be found if they intended to convey it, and the fact that they reserved it for a special agreement in part second, are equivalent to saying, We do not intend to lease the plaintiff's railroad, but to make an agreement to do so when it can lawfully be done. Again: If the parties intended to assign the Lowell's estate in violation of its covenants in the plaintiff's lease, why did they make this reservation and exception? The only reasonable explanation is, that when the parties made the instrument they did not intend to convey the Lowell's estate in the plaintiff's road, but to make an agreement to do so when they lawfully could.
Such being confessedly the purpose of the parties, did they abandon it, and convey and forfeit the Lowell's estate in the plaintiff's road, in making the stipulations in part two? To have this effect, language and provisions must be used admitting of no other reasonable construction. This does not appear. On the contrary, *Page 465 part two begins with words of agreement, not of present demise, and refers to the inability of the Lowell to convey its estate in the plaintiff's road. Then follows the provision that the lessor will use all reasonable efforts to deliver the possession as soon as practicable, which is, in effect, an agreement by the Lowell to convey and deliver the premises to the Maine in a reasonable time, if the written consent of the plaintiff can be obtained — a contingency which might never occur. Wood Land. T. 183; Buell v. Cook, 4 Conn. 238.
It is further provided, that the Lowell shall continue in possession, which is not usual in a lease which is intended as a present demise, especially if the subsequent possession is to be held by the lessor.
It is a good reason why part two should not be construed a technical conveyance of the Lowell's estate, that the parties had in part one of the same instrument made a lease in express and proper words, and why part two must mean something less, as it varies so widely in its form of expression, and has its own natural and proper meaning as an agreement, which cannot amount to a lease without doing violence to the words as well as the intention of the parties. 4 Bac. Abr. 135, 165, 166; Goodtitle v. Way, 1 T. R. 735; Roe v. Ashburner, 5 T. R. 163. The change in the language in part one of a present demise to that of a covenant or agreement in the second part, proves a like intention of the parties to change the meaning, and that a present demise was not intended by it. The use of such words in the former place, and their omission in the latter, show that the parties knew their proper use, that the omission was intentional, and that a present demise was not intended.
These considerations, taken in connection with the full knowledge of the parties that if the Lowell conveyed its valuable estate in the plaintiff's road it would work a forfeiture, of which the plaintiff's hostile management in the interest of the Concord Railroad would take advantage, are decisive evidence of the intention of the parties not to make a lease of the plaintiff's road, but merely an agreement for one, and such is the fair and legal construction of the instrument. Doe v. Clare, 2 T. R. 739, 741, 744; 4 Kent Com. 105; Hill. Real Prop. 265, 266; 4 Bac. Abr. 136; Jackson v. Meyers, 3 Johns. 388, 394. It is improbable that parties like the Lowell and the Maine entered into a bargain which contained stipulations plainly and clearly to the disadvantage of both, and this instrument is to be read in the light of this improbability. Woodman v. Spencer, 54 N.H. 507, 512; Gardner v. Webster, 64 N.H. 520, 521.
When the parties came to part second they had not made a conveyance, but in express terms had said they would not do so in violation of law. Then, with this expressed intention in view, they made the agreement in the second part, both knowing that the *Page 466 Lowell had not the lawful right to convey its estate till it had obtained the required consent. In this situation the parties agreed, the Lowell that it would use reasonable efforts to obtain the right to convey its estate, and if it could do so within a reasonable time would convey it, and the Maine agreed to accept the conveyance. This is the agreement made by the parties in part second. It is for a lease, if the Lowell can lawfully make one; and it does not contain words of present demise or words indicating a purpose to make one, but shows the design of the parties to adhere to their previously expressed intention not to make one till it could be lawfully done.
It is true that further on in part second the parties make what may be called a "meanwhile" arrangement as to the management of the plaintiff's road during the reasonable time which the Lowell has to obtain the consent of the plaintiff that the Lowell may convey. In this temporary arrangement it is claimed that language is used that creates the relation of master and servant, which technically presupposes that the Lowell had conveyed its estate to the Maine and thereby worked a forfeiture. It not being claimed, however, that words of present demise are used, nor that the words used would convey the Lowell's estate unless the parties intended they should, the essential inquiry still remains, What was the intention? Is it probable that the parties intending to make a lease of the Lowell's estate in the plaintiff's road expressly excepted it in the granting part of the instrument, made an agreement in the agreeing part for a lease in harmony with their expressed intention to do so when the Lowell could lawfully make one, still, in this temporary "meanwhile" arrangement, intentionally make a complete conveyance of the Lowell's unexpired term of ninety-six years in one hundred and eighty-five miles of railway of the value of millions of dollars, by a technical, unnatural application of legal principles governing the relation of master and servant? It does not seem possible. The parties making the instrument are intelligent, straightforward business men. Their intention had been clearly expressed in the instrument not to convey the Lowell's estate, but to make an agreement to do so; and the "meanwhile" arrangement was temporary, only to exist during the reasonable time the Lowell had under the agreement to obtain the plaintiff's assent to an assignment, the Lowell retaining the ownership and possession of the property during the interval. The estate of the Lowell in so important a system of public railways as that of the plaintiff's is not conveyed by the technical interpretation of the agreement in the Lowell's lease, claimed by the plaintiff, when such a conveyance depends on a contingency which has never occurred, works a forfeiture, and is contrary to the intention of the parties; nor is it an assignment of the Lowell's estate in the plaintiff's road, which forfeits the same *Page 467 under the common-law rules of strict construction of conditions subsequent. Hoyt v. Kimball, 49 N.H. 322, 327.
If part two is susceptible of being construed a conveyance of the class of roads and property coming within its provisions, the inquiry arises, When was it to take effect? It clearly was not intended to do so at once, but when the property could be lawfully delivered. The evidence on this point is so clear as to leave little doubt as to the conclusion. If part two conveyed the plaintiff's roads and property, to take effect at the same time the conveyance made in part one did, what was the object of the parties in making part two? If it was all to be conveyed, delivered, and become the property of the Maine at the same time and by the same delivery, why did the parties except it in part one and refer to it as not being assignable or transferable without violation of law or agreement, and why did the parties in part two say that "the lessor covenants that, if it be found impracticable to at once deliver the immediate possession of any railroad leased or operated by it at the inception of this lease, by reason of any agreement to the contrary or other reason, it will use all reasonable efforts to deliver and will deliver possession thereof as soon as practicable"? The parties knew that the assignment as to the plaintiff's road could not take effect before the Lowell obtained the plaintiff's consent to it without forfeiting the plaintiff's lease, and therefore they agreed, if the Lowell had not obtained the required consent at the beginning of the operation of the lease, that part two should not take effect at the time part one did by a delivery of the property conveyed by it, and the delivery of the property described in part two should be postponed for such a reasonable time as would enable the Lowell by the use of all reasonable effort to obtain the necessary consent. In other words, the agreement of the parties in the lease was, that part two should not take effect at the inception, or beginning, of the operation of the lease (Marvin v. M'Cullum, 20 Johns. 288, 289, Eastman v. Shaw, 65 N.Y. 528), but should be postponed to a time when it could lawfully be done.
The exception of the roads in part one that come within the provisions of part two, and the special arrangement as to their delivery, made them a part of the instrument, and in its construction all its parts must be considered, and each given its due weight in determining the intention of the parties. If the parties had not intended this to be so, and their purpose was to convey the Lowell's leased roads and those operated by it without regard to their being assignable or transferable, then they would not have made the exception in part one, and would have omitted part two altogether. The construction claimed, that part two makes a present conveyance of all the roads coming within its provisions, to take effect at any time when *Page 468 the roads in part one might be delivered, renders the exception aimless and part two useless verbiage, as the same result would have been accomplished by omitting both the exception and part two, and if the property described in both parts was conveyed, why was it not to be delivered in the second at the same time as in the first, unless it was agreed and was the intention and understanding of the parties, as well as agreed that part two should not take effect till the Lowell could lawfully deliver the property?
After the execution of the lease, and prior to October 11, the Lowell paid and the plaintiff received money as rent on its lease at four different times, amounting in all to the sum of $114,500, the last payment being September 30, 1887. To meet the legal presumption arising from the execution of the lease, that it was delivered and took effect on the day of its execution, and to avoid the waiver of the forfeiture which would be thereby incurred, it is claimed as a fact that the Lowell and Maine made some arrangement not contained in the lease, by which it was not to take effect till there was the physical delivery of the property, which took place October 11, and that the lease did not take effect till that time, when it became operative in all its parts. The arrangement sought to be established is found in the contemporaneous action and construction given to the lease by the parties to it, from its date to October 11, and the delivery then made, and the circumstances attending it. While these may tend to prove an arrangement that may avoid the waiver, they confirm beyond a doubt the interpretation of the lease, that part two was not to take effect till the roads coming within its provisions could be lawfully and should be actually delivered.
June 24, 1887, two days after the date of the lease, the directors of the Maine passed the following vote, which was recorded: "That under the lease to this company by the Boston Lowell Railroad Corporation, the president is hereby authorized and instructed, for and in behalf of this company, to receive possession of the demised railroad and property (except as hereinafter stated) in such manner and at such times as may be agreed upon with the directors of said Boston Lowell Railroad Corporation; and that until said Boston Lowell Railroad Corporation can lawfully and without violation of agreement surrender to this company the possession and occupation of the roads and property now held and possessed by it under leases and contracts with the Nashua Lowell Railroad Corporation, the Central Massachusetts Railroad Company, and the Boston, Concord Montreal Railroad Company, respectively, said Boston Lowell Railroad Corporation shall continue to hold and possess not only the roads and properties of said several companies, but also such equipment, supplies, materials, and other property as may be required to enable it to operate *Page 469 said leased and operated roads according to law and conformably to the obligations of said leases or contracts." The plaintiff's road was within the provisions of part two. June 29, 1887, the Lowell directors passed and recorded the following vote: "That under the lease by this corporation to the Boston Maine Rail road, when executed, the president is hereby authorized and instructed, for and on behalf of this corporation, to deliver possession of the demised railroad and property (except as hereinafter stated) in such manner and at such time as may be agreed upon with the directors of said Boston Maine Railroad; and that until this corporation can lawfully and without violation of agreement surrender to said Boston Maine Railroad the possession and occupation of the roads and property now held and possessed by this corporation under leases and contracts with the Nashua Lowell Railroad Corporation, the Central Massachusetts Railroad Company, the Boston, Concord Montreal Railroad Company, the Stony Brook Railroad Corporation, and the Wilton Railroad Company, respectively, this corporation shall continue to hold and possess not only the roads and properties of said several companies, but also such equipment, supplies, materials, and other property as may be required to enable it to operate said leased and operated roads according to law, and conformably to the obligations of said leases or contracts, and shall continue to operate said leased railroads according to the terms of the said several leases."
September 28, 1887, the Boston Maine directors voted and recorded the following: "That the president is hereby authorized and instructed, in the name and behalf of this corporation, and as soon hereafter as he may deem it expedient, to take and receive possession of the premises and property of which this corporation is entitled to the present possession, under the terms and provisions of the lease of the Boston Lowell Railroad Corporation to this company, dated June 22, 1887." October 11, 1887, the president of the Lowell delivered to the president of the Maine the roads and property conveyed in part one, and did not deliver the roads then within the provisions of part two, of which the plaintiff's road and property were a part. The receipt executed and delivered at the time is, —
"Passenger Station, B. L. R. R. Corporation. "Causeway Street, Boston, October 11, 1887.
"On the day and at the place above named, the Boston Lowell Railroad Corporation, through its president, Edwin Morey, delivered, and the Boston Maine Railroad, through its president, George C. Lord, received, possession of all the premises and property the possession of which said Boston Maine Railroad was then entitled to, under the terms and provisions of a lease by said Boston Lowell Railroad Corporation to said Boston Maine Railroad, dated June 22, 1887, the roads and property of *Page 470 which possession is this day delivered and received, being all the railroads and property covered and described by said lease of June 22, 1887, except the roads and property held and possessed by the Boston Lowell Railroad Corporation under leases and contracts with the Boston, Concord Montreal, the Wilton, and the Stony Brook railroad corporations, and such equipments, supplies, materials, and other property as may be required to enable said Boston Lowell Railroad Corporation to operate said last named roads, pursuant to its respective contracts therewith.
[Signed] "Edwin Morey, "President B. L. R. R. Corp. "George C. Lord, "President B. M. Corp."
The evidence of George C. Lord and Edwin Morey, the presidents of the corporations, who made and received the delivery of the property and executed the receipt, is, in substance, that the roads which were then within the provisions of part two were not delivered, of which the Montreal was one, and that those which were within the provisions of part one were delivered; that they did not understand that the Maine was entitled to receive the delivery or possession of the plaintiff's road under the lease, or that the Lowell could deliver it without violation of law or agreement, and that it was understood by them October 11, when the other roads were delivered, that the Lowell was to continue in possession of the Montreal and operate it under the plaintiff's lease, and that the Maine had nothing to do with it and that this understanding was practically executed by the Lowell's operating the road on its own direction after October 11, the same as it did before; that there was no delivery or change made in the operation of the plaintiff's road, because the contingency on which it was to be delivered had not occurred, and the road remained in the same legal and physical condition as to the plaintiff as it did before October 11.
The roads conveyed in part one were formally delivered October 11, and the lease took effect then as to them if it had not before, but this did not affect the plaintiff's road. The contract with reference to that was entirely different. The agreement and conditions upon which it was to be delivered, and the time when it was to take effect, were different in this, that while in the first part the roads could be lawfully delivered at once without prejudice, in the second they could not without forfeiting the plaintiff's lease to the Lowell and doing great injury to its entire railroad system. This difference in the right and property of the Lowell in the different roads in its system was the reason why the parties made part second, and agreed that the lease as to the class of roads coming within its provisions should not take effect till they could be lawfully *Page 471 delivered, although the lease could take effect at any time the parties might name as to the roads conveyed in part one.
October 11, the consent of the plaintiff that the Lowell might assign its lease had not been obtained, and its roads and property were still in a condition that they could not be delivered and have the lease take effect without a forfeiture, and they were not delivered, and the Lowell's lease did not take effect as to them, and the plaintiff's lease was not forfeited. The taking effect of part one, by the delivery of the property conveyed in it, did not affect part two, because under the agreement each part was to take effect on the delivery of the property conveyed in it. If the two parts had been written and executed separately as two instruments, but otherwise the same as now, no doubt would exist as to when and how each would take effect; and the intention of the parties being plain, a single signing would be sufficient, and the lease would take effect as to the property conveyed in part one when it was delivered, and as to the property in part two, when within a reasonable time thereafter the right was acquired to deliver it and a delivery could actually be made. This was the contemporaneous construction which the parties gave to the instrument. They delivered, October 11, the property which lawfully could be delivered on that day, and expressly excepted the property which came within the provisions of part two that they could not lawfully deliver. The lease as to part two was to take effect either on its execution, or, by the agreement of the parties, when the property described in it could and should be lawfully delivered. If it ever took effect as to that part, it was on its execution, as the property was not delivered, and could not have been lawfully before the date of the plaintiff's writ. It may be claimed that the "meanwhile" arrangement provided for its operation till there could be a delivery, which created the relation of master and servant. The reply to this is, that no provision of part two took effect till they all did; it did not take effect piecemeal. All the provisions were to take effect on the delivery of the property, and not before.
The parties, in their settlement of October 11, under the "to have and to hold" arrangement of part one, construed it to mean, in substance, as the "meanwhile" arrangement in part two reads, by the Maine's taking all the earnings, paying the rentals, operating expenses, and providing against all liabilities incurred from April 1. In the plaintiff's view the Maine was the master or principal from the date of the lease to October 11, receiving all the earnings, and responsible for all the operating expenses, claims, and liabilities, and the Lowell was its servant operating the roads of part one for the Maine, receiving and to receive not what the roads earned for compensation, but the rental provided for in the lease, and the running of those roads by the Lowell for the Maine was settled and adjusted in this way *Page 472 October 11. Case, Book 2, pp. 18, 20, Ints. 19, 32. After the date of the lease till October 11, taking the plaintiff's view, it was immaterial to the Lowell, whether it paid the expenses of operation or not, as to the sum it was to receive for doing the work. In principle, the same legal relation existed between the Lowell and the Maine during this period which it is claimed existed between the Maine and the Lowell after October 11 as to the plaintiff's road: still it is said it is unimportant because the lease had not taken effect, that it was to take effect on delivery and not before. The same reply is equally pertinent, and an answer to the claims made as to the relations between the Maine and the Lowell after October 11. There had been no delivery of the roads in part two, and it was not to take effect till a delivery was made. The same relations, both in law and in fact, continued to exist between the Lowell and the Maine, from October 11 to the date of the writ, that existed from the date of the lease till October 11. So far as the plaintiff's roads and property were concerned, no change had been made. The conclusion then is, if the lease did not take effect on its execution, it took effect as to the property conveyed in part one on its delivery October 11; and as to part two, the contingency stated in the lease not having occurred, the property coming within its provisions was not delivered, and the lease, as to it, had not taken effect at the date of the plaintiff's writ.
For these reasons, as well as for total want of equity in the plaintiff's case, I am unable to assent to the opinion of the majority of the court.
ALLEN and BLODGETT, JJ., concur in the foregoing dissenting opinion. *Page 473
[EDITORS' NOTE: PAGES 473-643 CONTAINED A SUPERIOR COURT CASE, SEE 65 NEW HAMPSHIRE REPORTS PAGE 473.] *Page 644