delivered the opinion of the Court:
It will be observed that the court sustained - a demurrer to pleas one and two, and no exception was taken to the decision of the court, but the defendant acquiesced in the decision, and obtained leave to plead over; so far, therefore, as these pleas are concerned or the action of the court upon them, no question is presented for our consideration. As will be seen from the statement, a demurrer was tiled to the declaration; the opinion of the court, however, was never taken on the demurrer, but, by agreement of the parties made in open court, it was overruled, and leave granted the defendant to plead. This was in effect a withdrawal of the demurrer, and the case stands in the same position as it would if no demurrer had ever been filed to the declaration. When, therefore, the plaintiffs interposed a demurrer to the three pleas filed by the defendant, although the pleas were bad, if the declaration was also bad, under the settled rules of pleading, the demurrer should have been carried back to the declaration, on the principle that judgment will be rendered against the party committing the first error in pleading. The real question, therefore, in this case, is as to the sufficiency of the plaintiffs* declaration. As has been seen, the contract entered into between the parties was set out in luxe verba in the declaration. .At the time the contract was executed both parties were engaged in a public employment. The plaintiffs were public warehousemen, and owned an elevator for the storage of grain, situated on lots one and two, of the original town of Chicago, and the defendant owned lots three, four and five, in the same block, and was a common carrier. Under the contract the plaintiffs erected an elevator on defendant’s lots, with a capacity of 700,000 bushels of grain. This elevator, and the one on lots one and two, owned and used by the plaintiffs when the contract was made, were to be used by the plaintiffs in carrying out the provisions of the contract entered into by the parties. Under article 4 of the contract, the plaintiffs agreed to receive and store grain as delivered, to the extent of the capacity of the two elevators, and it was also agreed that the defendant should at all times be entitled to storage for its grain, to the extent of 1,000,000 bushels. Under article 3, the defendant agreed to deliver on the tracks, on cars, at the elevators, to plaintiffs, all the grain that may be brought by its railway consigned to parties in Chicago, so far as defendant can legally control the same for handling and storage in the elevators. It is not charged that the defendant failed or refused to deliver at the elevators all the grain shipped over its lines to Chicago, so far as the company could legally control the same, nor is it charged that the defendant refused to tender or deliver to the elevators for storage 1,000,000 bushels of grain, during the year 1888, but on the other hand, the only breach relied upon is a failure of the defendant to observe the covenant contained in article 8, that the stipulated quantity of grain was not annually received by the elevators for storage. In other words, the claim in this case is, that during the year 1888 the plaintiffs failed to receive for storage in their two elevators 5,000,000 bushels of grain, and, in consequence thereof, the defendant, under article 8 of the contract, is liable to pay them one cent per bushel for the amount of the deficiency. It is not claimed, as we understand the argument, that the defendant agreed to deliver in the elevators for storage 5,000,000 bushels of grain annually. Indeed, the only clause of the contract binding the defendant to deliver grain to the elevator is article 3, which, as we have seen, requires the defendant to deliver, on tracks, at the elevator, all grain brought over its railway, so far as the defendant can legally control the same. We find no other provision of the contract binding the defendant itself to deliver grain to the elevator. It was expected that the plaintiffs would receive grain for storage from other parties. In fact, article 4 expressly provides that the plaintiffs might secure grain for storage from other parties, and from the river and canal craft. It seems, therefore, plain, that so far as the defendant was concerned, it was not contemplated by either party to the contract that it was required by the terms of the contract to deliver grain for storage under article 8. But the question arises, what the parties did intend, or what did they mean by that part of article 8 which reads: “In consideration of the agreements aforesaid, the said party of the first part agrees that the total amount of grain received at said elevators shall be at least five million bushels on an average for each year, during the term of this lease.” The construction placed on the contract by the plaintiffs’ counsel is:
“If on the first day of January, 1889, it appeared, first, that the total quantity of grain put into said two elevators during the year then closing was less than 5,000,000 bushels by 3,116,521 bushels; second, that during the period from January 1, 1881, to January 1, 1888, the total quantity of grain put into said two elevators was not greater than an average of 5,000,000 bushels per year, or, which amounts to the same thing, that the total quantity of grain put into said elevators from January 1,1881, to January 1, 1889, was less, by 3,116,521 bushels, than enough to make :an average of 5,000,000 bushels per year; and, third, that, during said period of time, plaintiffs duly carried on at, in, and with, said two elevators, the business of receiving, storing, and discharging grain, and were ready to receive in said elevators grain as tendered at said elevators for storage therein, to the extent of the capacity of said elevators—that is to say, were ready during said period to put into said elevators all grain that could be stored therein; —then the railway company became liable to pay plaintiffs one cent per bushel on said shortage, or $31,165.21.”
From the foregoing, it seems that plaintiffs understood and claim that article 8 is in the nature of a guarantee on behalf of the defendant, that the plaintiffs shall do a storage business of 5,000,000 bushels annually, regardless of the capacity of the two elevators. It does not appear from the record what the precise capacity of the two elevators was. But, in a case between the same parties, reported in 149 U. S. 2, involving the same contract, it appeared that the capacity of the two was 1,100,000 bushels. Treating that as correct, in order to do a storage business of 5,000,000 bushels, it would be necessary that the entire grain stored should be moved out over four times during each year. When grain is stored in an elevator, the length of time it shall remain depends upon the option of the owner. So long as he sees fit to pay storage, he no doubt has the right to let his grain remain in store. It would, therefore, be impossible to determine in advance the number of bushels of grain an elevator might be able to handle in any one year. The railway company had no means of knowing how long the owner or shipper of grain might be likely to permit it to remain in the elevator during any one year, and it is unreasonable to suppose that it would, in view of such fact, be willing to enter into a guarantee that the owners would so move their grain that the elevator would be able to handle any definite amount of grain within a given time; and the terms of the covenant do not require a construction which might lead to a result which could never have been anticipated by one of the contracting parties.
Suppose, oh the first week of January, 1888, the plaintiffs received in these elevators 1,100,000 bushels of grain, the full amount the two 'would contain, and the owners concluded to let the grain remain in store during the entire year. Under the construction contended for by plaintiffs, the defendant would be required to pay to the plaintiffs one cent per bushel on 3,900,000 bushels of grain, although over 5,000,000 bushels may have been tendered for storage during that year, and refused by the plaintiffs, for the reason they had no further storage capacity. We are not prepared to adopt a construction of the contract which would lead to such results. The provision in article 8, that the total amount of grain received at said elevators shall be at least five million bushels, can not be regarded as an undertaking. on the part of the defendant that five million bushels shall, as a matter of fact, be stored by the plaintiffs in the elevators. The grain may arrive at the elevators or be received at the elevators, and never go into store in the elevators. A narrow and unreasonable construction should not be placed on the word “received,” but in ascertaining what the parties intended, the nature of the business in which they were engaged, their situation, and the purpose of the entire contract may be considered, and when this is done, it is manifest that the sole purpose of the covenant in article 8 was that there would be delivered on track at the elevators, by the defendant railway company and other parties, grain in quantity amounting to 5,000,000 bushels annually, and when that was done the covenant was fully complied with. And whether the defendant• received the grain in store, or declined to take it in store on account of a want of capacity, or other cause, did not in any manner affect the defendant. When the required amount of" grain was delivered on track at the elevators, the liability of the defendant on its covenant was at an end. It had nothing to do with the plaintiffs’ ability or inability to store the grain. This, we think, is a fair and reasonable construction of the contract.
If we are correct in the construction of the contract, the only remaining question to be considered is whether the declaration contains averments showing a right of recovery on behalf of the plaintiffs under that contract. As has been seen under article eight, “the parties of the first part agreed that the total amount of grain received at said elevators shall be at least five million bushels on an average for each year during the term of this lease.” Under this provision of the contract, although less than five million bushels may be received during any one year, there would be no breach of the contract, unless there was a failure during the term the lease should run to make up the deficit.
The contract does not require five million bushels to be delivered each year, but only that the delivery during the ten years should average that quantity. The declaration, as amended September 20, 1890, failed to aver that the total receipts of grain at the elevators from all sources, from the 1st day of January, 1881, to the 1st day of January, 1888, was less than the annual average of 5,000,000 bushels, and on account of this deficit, it is conceded in the argument that the declaration was bad. No further allusion will, therefore, be made to that part of the declaration.
We now come to the amendments made to the declaration May 28, 1892. As heretofore seen, the language of article eight is, “In consideration of the agreements aforesaid, the said party of the first part agrees that the total amount of grain received at said elevators shall be at least 5,000,000 bushels on an average for each year during the term of this lease.” It will be observed that there is no expressed promise on the part of the plaintiffs to receive the grain in the elevators required by the covenant to be delivered at the elevators. But the only object of the agreement that a certain quantity of grain should be delivered was, that the grain should be stored in the elevator; there was, therefore, an implied agreement on the part of the plaintiffs tli at the grain delivered, or offered to be delivered, should be accepted and stored; that, in connection with the promise that a certain quantity of grain should be delivered, there was a corresponding promise or agreement that the grain should be accepted and stored. The promise, that a .certain quantity of grain should be delivered, and the promise that it should be accepted and stored, are dependent undertakings. The obligation that the grain should be delivered, and the obligation to store, are concurrent. 1 Chit. Pleading, 297; Perlee v. Rose, 12 John. 209.
In order to show a breach under article eight, it was therefore incumbent on the plaintiffs to aver that they were ready, able and willing to accept and store all grain delivered on the tracks at the elevators for storage, and that a less quantity was delivered, tendered, or offered to be delivered, than required by article eight of the contract. But no such averments will be found in the amended declaration. In the amendment to the first count all that we find .in regard to the readiness of the plaintiffs to receive the grain, is the following: That plaintiffs, from 1881 to the commencement of the suit, were engaged in storing grain, and during said time all grain tendered for storage in said elevators, so far as the capacity of the elevators would at the time admit, was duly received. The fact that the storage capacity of the elevators at the time grain may have been delivered for storage was all taken, furnishes no excuse. In order to establish a breach under the contract, it devolved on the plaintiffs to aver a readiness at all times to receive all grain delivered, tendered or offered for storage. By way of further amendment, plaintiffs added May 28, 1892, another count. But in this count all that will be found in respect to the readiness of the plaintiffs to receive the grain delivered for storage, is the following: After averring that they were in the business of receiving and storing grain, it is averred, that they were ready to receive in said elevators all grain that could be received therein, being an average of 5,000,000 bushels or more per year. This showed no readiness to receive grain delivered for storage. They were only ready when storage capacity existed in the warehouse. But that was a matter with which the defendant had no concern. The covenant or agreement of the railway company, as contained in article 8, as heretofore seen, was that a certain quantity of grain would be •delivered on track for storage at the elevators; but that artide contains no guarantee that plaintiffs would have the capadty to store the grain, or any part of it. It is therefore apparent, when the quantity of grain named in the contract was offered to the plaintiffs, the railway company had complied with its part of the contract, and the inability of the plaintiffs to accept the grain for the want of storage capacity, or for any other reason, can not be relied upon to aid them in enforcing a liability against the defendant. The judgment of the Appellate Court will be-affirmed.
r , , „ 7 Judgment affirmed.
George Dunlap et al. v. Chicago, Milwaukee & St. Paul Railway Co. Filed at Ottawa, March 31,1894. Per Curiam : The questions involved in this case are the same as those involved in the foregoing case, between the same parties, and the decision in that case must control here. Judgment of Appellate Court will be affirmed.
Judgment affirmed.