ON PETITION FOR REHEARING. Appellee, in support of its petition for a rehearing, contends that the cases cited in the main opinion are not in point and throw little light on the questions involved in this appeal, since in none of them was the railroad obligated to renew the crossing, as was required by the contract in the instant case. It is true that in none of the contracts involved in the cases cited was the railroad required to renew the crossing and that all of them provided that the traction company should, at its own expense, maintain and renew the crossing. But in Union TractionCo. v. Ross, Rec. (1919), 71 Ind. App. 473, 125 N.E. 72, the traction company failed to renew the crossing and the railroad company, having renewed it, undertook to collect the entire cost from the traction company. The contract in that case provided that the traction company should renew the crossing at its own expense, and if it failed to do so, the railroad, after ten days' notice to the traction company, was authorized to renew the crossing, the traction company agreeing to pay the railroad the cost of such renewal. It was there held that the railroad was only entitled to recover an amount equal to one-half the cost of renewing the crossing and that the contract requiring the traction company to pay the entire cost was without consideration.
The Supreme Court, in Pittsburgh, etc., R. Co. v. Ft. Wayne,etc., Traction Co. (1923), 193 Ind. 405, 138 N.E. 759, where the contract, like the one in the instant case, required the railroad to construct the original crossing and to thereafter maintain and renew the same, the traction company agreeing to pay the railroad *Page 705 the entire cost of the renewal, held that the traction company, having renewed the crossing, was entitled to recover one-half the cost of renewing the crossing from the railroad.
The consideration for appellant's promise to pay the entire cost of the maintenance and renewal of the crossing was the grant by the appellee of the right to cross appellee's railroad tracks.
Rehearing denied.