author: Eollett, J.

text:
    Railroad Company v. Railway Company.

      Buies of consiruption— Contract — Several writings.

    1. In construing a written agreement in which the parties claim the words and expressions contain their true intent and meaning, and there is no claim of fraud or mistake, there should be given to each word and expression that plain and obvious meaning which the context and the whole instrument require to make each part consistent with the whole and which will secure and carry into effect the object of the parties.
    2. When a written agreement consists of more than one dislinct writing or contract, the different provisions of all the parts should be given due weight in ascertaining the intended meaning of any portion of the same; butif the language is clear and distinct, and the plain and obvious meaning of the words is consistent with the whole instrument, such meaning must be taken as the intended meaning of the parties, unless other parts of the agreement not only admit of, but require, a different construction.
    Reserved in the District Court of Clarke county.
    The Cincinnati, Sandusky and Cleveland Railroad Company and the .Columbus, Springfield and Cincinnati Railway Company brought suit against the Indiana, Blooming-ton and Western Railway Company, in the court of common pleas of Clarke county, to recover $33,928.36 and interest, as the balance due plaintiffs from the defendant on account of rent accruing during the first two quarters of a lease made by the plaintiffs to the defendant March 8,1881. All these companies are distinct and separate corporations, and each owned a distinct line of railway.
    In November, 1870, the Cincinnati, Sanduskjr and Cleveland Railroad Company entered into the following lease:
    “Whereas, The Cincinnati, Sandusky and Cleveland Railroad Company, a lawful corporation under the laws of the state of Ohio, and whose railroad extends from Dayton to Sandusky in said state, and the Cincinnati and Springfield Railway Company, also a lawful corporation in the state of Ohio, whose proposed railroad extends from Cincinnati to Dayton, have lines of railroad continuous and connected at Dayton, in said state, have entered into au arrangement for' their common benefit and consistent with and calculated to promote and better carry out the objects for which they were created:
    “Now, therefore, this identure, made this twenty-eighth (28th) day of November, a. d. 1870, between the said Cincinnati, Sandusky and Cleveland Railroad Company, party of tbe first part, and tbe said Cincinnati and Springfield Railway Company, party of the second part, witnesseth:
    “ That the said party of the first part, for and in consideration of the payments, covenants, and agreements hereinafter mentioned and contained, by said party of the second part, its successors and assigns, to be paid and performed, by these presents, grants, demises and lets unto the said party of the second part, its successors and assigns, who agree to lease the same, so much of its railroad extending from its terminus, in the city of Dayton, in the county of Montgomery, and in the state of Ohio, to its passenger station, in the city of Springfield, in the county of Clarke, and in the state of Ohio, together with the right to the joint use, with the party of the first part, of its passenger station in the city of Springfield, and so much of its side tracks, freight bouses, turn-tables, water stations, depot grounds, and grounds for the erection of shops and fixtures, and grounds for additional side tracks, and approaches to the same, as is consistent with the use and subject to the same by the party of the first part, for the transaction of its business in the city of Springfield; also all the depot grounds, side tracks, water tanks, station houses, warehouses, machine shops, engine shops, turn-tables, and all fixtures, rights, and privileges of the party of the first part, in the city of Dayton, together with the right of way to all lands upon and over which the bed of said railroad is located and constructed, also all things appertaining to said right of way and road-bed, together with all side tracks, wood and water stations, passenger and freight houses, gravel pits, and the appurtenances of said portion of said railroad, between the city of Dayton and the city of Springfield aforesaid.
    “And the said party of the second part, its successors and assigns, shall pay all taxes and assessments whatsoever, excepting on premises in the city of Springfield, in the joint occupation of the parties to this agreement, which at any time during the continuance of the said term may be assessed or levied on said railroad, or other premises hereby leased, or any part thereof, or on the said first party, its successors or assigns, on account thereof.
    “ The taxes, assessments, repairs, and renewals on said premises in the joint occupation of said parties shall be shared and paid by said parties, one-half by each respectively, and the taxes and assessments upon all other property rights and interest at Springfield, in the exclusive occupation of either of said parties, shall be paid by the party using the same, and the said party of the fi rst part hereby covenants and agrees that until said second party, its successors and assigns, shall take the actual possession of said railroad and the other premises hereinbefore mentioned, it will keep and maintain the same in repair and running order, the same in all respects as it and they now are—
    “ To have and to hold the above mentioned and described railroad and premises with the appurtenances unto the said party, its successor and assigns, from such day as it shall run its own train from the city of Dayton, over its own road, to the city of Cincinnati, upon giving sixty (60) days’ previous notice in writing to the party of the first part, and in any event not later than the first (1st) day of April, a. r>. 1872, for and during and until the full end and term of ninety-nine (99) years thence next ensuing'and until the end and term of all renewals and extensions of this lease and of said term, as hereafter provided.
    “And in consideration of the premises it is hereby agreed that during the said term of ninety-nine (99) years, and said renewals and extensions thereof, the entire gross earnings and receipts accruing by the operating and the use of the said railroad and the premises hereby granted and demised, to be divided between the parties to this agreement in the following proportions:
    “To the said party of the first part, thirty-five (35) per centum, and to said party of the second part, sixty-five (65) per centum thereof; that is to say, the said party of the first part is to receive from said party of the second part at the time and in the manner hereinafter mentioned for the use of said railroad and other premises thirty-five (35) per centum of said gross earnings and receipts without deductions for expenses, taxes, assessments, terminal charges, losses, damages, or abatement for any other reason, or in any other manner whatever, whereby the sum thus to be received might be reduced; said gross earnings to be determined from the entire gross receipts and earnings from all sources whatsoever, or however derived of the said railroad and property hereby leased, or any portion thereof, aud the business shall be so transacted, and the books shall be so kept by said second party, as to clearly exhibit the entire gross earnings without deductions as aforesaid of the said railroad aud premises hereby leased. Said sum shall be paid over to said party of the first part at its office in the city of Sandusky, in quarterly payments within thirty (80) days after the last days of December, March, June, and September in each and every year, for the quarter preceding, and said second party shall furnish and deliver to said first party semi-annual accounts of said gross earnings, and allow said first party such access to its books, documents, and papers as may be required to ascertain the correctness of said accounts.
    “ Provided always, and these presents are upon this express condition, that if the said party of the second part, its successors and assigns, shall fail to pay said party of the first part, its successors or assigns, said proportional part of said gross earnings, or any part thereof, for a period of thirty (30) days after the same ought to have been paid as aforesaid,' or in case the said second party, its successors and assigns, shall not from time to time, and at all times during the continuance of this demise, well and truly observe, perform, and keep all and singular the covenants, conditions, and agreements which are or ought to be kept and performed by said second party according to the true intent and meaning of these presents, then in any aud every such case the said party of the first part, its successors and assigns, without notice or demand of forfeiture, said default still continuing, shall have the right to re-enter upon said railroad and the premises herein demised, and to have again, repossess and enjoy the same, as of its, or their former estate, any thing hei-einbefore contained to the contrary thereof in any wise notwithstanding.
    “And the said party of the second part, its successors and assigns, hereby covenants and agrees with the said party of the first part, its successors and assigns, that said second party, its successors and assigns, will, during the term hereby granted, well and truly pay unto said party of the first part, its successors and assigns, the said sum above reserved, at the time and in the manner limited and prescribed as aforesaid for the payment thereof, according to the true intent and meaning of these presents; that it will use said railroad in connection with a railroad to be built by said second party between the city of Dayton and the city of Cincinnati, so as to form a trunk road from the city of Cincinnati by the way of the city of Springfield to Cleveland, Sandusky, and Columbus.
    “And said party of the second part further agrees that it will receive and transport over its road with promptness and dispatch all freight and passengers, and transact all the business destined for Cincinnati and other points either on its own or any other railroad, and for points beyond Cincinnati, that comes over the railroad under the management and control of the said party of the first part, the said party of the first part fixing the rate therefor to all points; and in like manner the party of the second part is to fix the rate of transportation on all freights and business originating at Cincinnati or beyond or on the line of its road passing over the road of the party of the first part, to all points; and the rates thus fixed on all such through business, or business between said points, by the parties respectively, shall be divided between them pro rata according to distance hauled by each party.
    “All unconsigned passenger and freight traffic for points south of Springfield, and controlled by the party of the first part, shall be delivered to and forwarded by the parly of the second part from Springfield over the road owned ■ and operated by said second party.

      “All business controlled by the party of the second part destined to all points west of the railroad between Springfield and Cleveland via Delaware, and west and south and north-west thereof via lake and fail, or all rail, and to all points on the Columbus road of said party of the first part, and points east and south thereof via Columbus, shall be forwarded by the railway of the party of the first part from Springfield; and that on all such business destined to or from the territory agreed upon -herein as belonging to and sent over the roads of. the said first party, said second party will not prorate on sjuch business, except in connection with the said first party’s road; and that to any other railroad said second party shall charge and collect on all such business its full local rates for the distance it shall transport the same, and the second party shall make no lower rates of transportation on either passengers or freight between Cleveland and any point south of Springfield on local business than shall be made on same class of business between Sandusky and same points; and also that said party of the second part, its successors and assigns, shall, during the said term, maintain and keep in repair said railroad and other premises hereby granted, and renew and replace the same whenever and as often as the same shall be worn out or deteriorated by use or otherwise; and from time to time, as the nature and extent of the business requires, it will construct new and additional side tracks, stations, warehouses, and other structures and fixtures for its accommodation; that it will run and operate said railroad in such manner that the corporate rights and privileges of said first party shall not be impaired or endangered, and furnish to the public all reasonable accommodations; that it will indemnify and save harmless said party of the first part, its successors and assigns, from all liability and claims for damages and losses incurred and arising in renewing said railroad; and in general that it will maintain said railroad in such condition and that it will operate the same and furnish such machinery, cars, equipments, stations, and other appurtenances as are suited and required by a railroad of the best description; and that it will use all reasonable and necessary efforts to facilitate and increase the busiuess of said road hereby leased in preference to any other line or road.
    “In making up the schedule time for all through passenger trains precedence aud priority shall be given to the trains to and from Cleveland, and to aud from Cincinnati via Springfield and Delaware; but the party of the first part shall have the right to run its trains to and from Columbus and to'- and from Sandusky and to and from Springfield to connect with the aforesaid through trains to and from Cleveland and to and from Cincinnati; and shall have the time given aud right to attach one or more express, baggage, passenger, and sleeping cars and have them made part of such through trains, as shall from time to time be necessary for the prompt and efficient transaction and management of its business.
    “ Provided, however, that if the business of the first party is not thereby accommodated satisfactorily to said first party by the schedule of time, to be fixed as aforesaid, then the said first party shall have the right, in addition thereto, to fix the time of one train daily each way between Cincinnati aud Springfield to connect with its trains to and from Columbus and Sandusky, which trains shall be so run by said second party; and the said party of the first part, its successors and assigns, further covenant and agree that on or before the expiration of the term of ninety-nine years herein contained, at the request and expense of said second party, its successors or assigns, said first party, its successors or assigns, shall grant and execute to.said second party, its-successors or assigns, a new lease of the railroad and premises hereby demised for the further term.of ninety-nine years, to- commence at the expiration of the term hereby granted, at the same time, rent payable in a like manner and subject to the like covenants and agreements as are contained in these presents ; and on or before the expiration of each and every term of ninety-nine years thereafter to grant and execute new leases to the party aforesaid of like tenor and effect, thenceforth forever. And the said party of the first part further covenants and agrees that, upon the request of said second party, its successors or assigns, it will proceed and appropriate, under the laws of the state of Ohio, such real estate, rights, and interests as may be necessary or required for the maintenance and operation of said railroad; said second party, its successors or assigns, paying all costs or damages therefor, and for which.said first party may thereby become liable. And further, that upon like request and at the' cost and charge of said second party, its successors or assigns, the said first party, its successors or assigns, will make and execute such further and other lawful deeds, assurances, and confirmations of the railroad and other premises hereby granted, dr intended so to be, unto said second party, its successors or assigns, as it or they shall reasonably require.
    “And further, whereas the said first party heretofore has issued three series of bonds, the payment of which is secured by deeds in trust of their entire property, including the railroad and premises hereby demised, and has issued preferred stock, the aggregate amount of said bonds and stock does not exceed the sum of three millions of dollars ($3,000,000), the said first party hereby covenants and agrees that it will pay said bonds, both principal and interest, and the dividends on said stock, as they shall respectively become payable, so as to protect said second party, its successors and assigns, in the use and peaceable possession of said railroad and the premises hereby demised; but said party of the first part, its successors and assigns, shall have the right, and this indenture is made upon the express condition that at any time hereafter, by agreement with the holders of said bonds, it may extend the time of payment of the same; or said first party may substitute for bonds now outstanding new bonds, and secure the payment of such new bonds by another deed in trust of its entire property, including the railroad and other premises hereby demised ; and in such case the deed in trust last mentioned, and said preferred stock shall be a lien in all respects on any right, title, or interest acquired by said second party, its successors or assigns, under’and by virtue of this indenture, as the former deed in trust, aud with the same priority of lien ; provided, however, that the total amount of bonds so extended or substituted and the amount of such preferred stock shall not at any time, without the consent of said second party, exceed the aggregate amount of three million dollars ($3,000,000); and further, provided that in case that the piarty of the first part, its successors and assigns, shall fail to pay the pi’incipal or interest of said bonds or the dividends of said preferred stock for a period of thirty days after the same becomes due and payable, said party of the second part, its successors and assigns, may proceed to pay the same out of the rental, created under this lease, so far as the same may extend for the payment thereof; and the said party of the first part shall account to the said party of the secoud part for the amount thus paid, in accordance With the terms of this lease.
    “It is mutually agreed that this agreement shall be considered and held perfected and binding on the parties hereto, when assented to by the stockholders of each party in the mode, and manner pointed, out and prescribed by statute.
    “ In witness whereof, the said party of the first part and the said party of the second part, by order of their respective boards of directors, have caused their names and corporate seals to be affixed hereto, as well as to the counterpart thereof, by their respective presidents, on the year and day first above mentioned.”
    This agreement was duly assented to by the stockholders, of each party, and on or about May, 18, 1871, the Cincinnati and Springfield Railway Company took possession of that portion of the railroad extending from Springfield to Dayton, and, through the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, has ever since operated the same under the lease.
    On May, 8, 1881, the plaintiffs and the defendant, each of them being duly authorized by a vote of their respective stockholders, made the following lease:

      “Whereas, the Cincinnati, Sandusky and Cleveland Railroad Company and the Columbus, Springfield and Cincinnati Railroad Company, corporations existing by virtue and authority of the laws of the state of Ohio, and the Indiana, Bloomington and Western Railway Company, a corporation existing by virtue and authority of the laws of the states of Ohio, Indiana, and Illinois, the two former of which companies have lines of railroad constructed and in operation from Sandusky to Dayton, in said state of Ohio, and from Columbus to Springfield, in said state of Ohio, connecting at said Springfield; and whereas, the said Indiana, Blooming-ton and Western Railway Company now owns and operates a line of railroad from Pekin, in the state of Illinois, to Indianapolis, in the state of Indiana, and is now extending its said line of railroad from said Indianapolis to said Springfield, Ohio, b}^ the construction of a new line of railroad so as to connect at said Springfield with the lines of railroad of said Cincinnati, Sandusky and Cleveland, and Columbus, Springfield and Cincinnati Railroad Companies, so as to form a continuous line for the passage of cars, and thereby to increase its facilities for doing an east and west bound business, and to render more profitable the large amount of freight and passenger business it expects to bring to said Springfield, and to further facilitate this purpose desires to obtain a lease in perpetuity, or for as long a time as it lawfully can, of the lines of railroad of said Cincinnati, San-dusky and Cleveland, and Columbus, Springfield and Cincinnati Railroad Companies; and whereas, the said lines of railroad are continuous and not competing, and the boards of directors of the Cincinnati, Sandusky and Cleveland, and Columbus, Springfield and Cincinnati Railroad Companies, aforenamed,.having entered into an agreement to make such a lease or leases and submit the same for the consideration and ratification of the stockholders of their respective corporations; now, therefore, this indenture, made this eighth (8th) day of March, in the year of our Lord eighteen hundred and eighty-one (1881), by and between the said Cincinnati, Sandusky and Cleveland Railroad Company and the Columbus, Springfield and Cincinnati Railroad Company, parties of the first part, and the said Indiana, Bloomington and Western Railway Company, party of the second part, witnesseth :
    “ That the parties of the first part, for and in consideration of the payments, covenants, anci agreements hereinafter mentioned, by, for, and in behalf of the party of the second part, its successors and assigns, to be paid and performed, and upon the conditions and restrictions hereinafter stated, the said parties of the first part do hereby grant, lease, and demise unto the said party of the second part, its successors and assigns, the entire railroads of the said parties of the first part, lying in and extending from the city of Sandusky, in Erie county, to the city of Dayton, in Montgomery county, and from the town of Carey, in Wyandot county, to the town of Eindlay, in Hancock county, and from the city of Columbus, in Eranklin county, to the city of Springfield, in Clarke county, all in the state of Ohio, now constructed, or which shall hereafter be constructed, as provided in this agreement; that is to say, their real estate, and rights of way, their side tracks, machine shops, engine houses, warehouses, road-beds, gravel pits, bridges, superstructures, tracks and appurtenances connected with the same, their depot stations, water houses, rolling stock and equipment, and all property, rights, and interests of every description acquired and now held, or which hereafter shall be acquired by said party of the first part, for the construction, maintenance, and operation of said railroads that may be appurtenant thereto and necessary for their operation, or intended for such use.

      “ To have and to hold said railroads and all and singular the premises, with their appurtenances herein before demised and expressed, or intended so to be, unto the said Indiana, Bloomington and Western Railroad Company, its successors and assigns, from the first (1st) day of May, A. d. 1881, for and during and until the end of the full term of ninety-nine (99) years thence next ensuing, and renewable from time to time for like periods forever. Provided, however, that whereas the parties of the first part have heretofore issued four series of bonds now outstanding, and have also issued preferred stock not exceeding in the aggregate -four millions of dollars, the payment of which is secured by deeds of trust of the entire property of the said parties of the first part, their successors and assigns, shall have the right, and this indenture is made upon the express condition that at any time hereafter by agreement with the holders of said bonds and preferred stock they may extend the time of payment of the same; or said parties of the first part, their successors and assigns, may substitute new bonds and preferred stock therefor, and secure the payment of such new bonds and preferred stock by other deed or deeds in trust of their entire property, including the railroads and other property hereby demised, and in such case the said deed or deeds in trust last mentioned and the preferred stock shall be a prior lien in all respects on any right, title, or interest acquired by said party of the second .part, its successors and assigns, under and by virtue of this indenture as the former deeds in trust, and with the same priority of lien.
    “The total amount of bonds and preferred stock so extended or substituted, however, shall not at any time exceed in the aggregate the sum of four millions of dollars without the consent of the said party of the second part; and the said parties of the first part, their successors and assigns, hereby covenant and agree with the party of the second part, its successors and assigns, that during said term of ninety-nine (99) years (or any other term of years) hereby granted and demised, they will at all times keep and maintain their corporate existence and organization; that they will not knowingly do or omit to do any act or thing whereby their corporate powers, rights, or privileges, or the term hereby created, may be forfeited or endangered, and the possession and use of said railroads and premises hereby granted to said second party, its successors and assigns, restricted;-and said parties of the first part, their successors and. assigns, hereby covenant and agree with, the party of the second part, its successors and assigns, that during the said term of ninety-nine (99) years, or any other term heroin provided, it shall at all times, peaceably and quietly have, hold, and enjoy the said demised and granted railroad premises and appurtenances without let, hinderance, or interference from said parties of the first part, their successors or assigns, or any other person or persons whomsoever claiming from or uuder it or them, or either of them. And the said parties of the first part, their successors and assigns, further covenant and agree that on or before the expiration of ninety-nine (99) years, or any other term herein provided, they, or either of them, will at the request and expense of the said party of the second part, its successors or assigns, grant and execute to the said party of the second part, its successors and assigns, a new lease of the railroads and premises hereby demised for the further term of ninety-nine (99) years, to commence at the expiration of the term hereby granted, and at, or before the expiration of every renewal thereof, at the same rental, payable in like manner, and subject to the like covenants, agreements, conditions, and restrictions as are contained in these presents.
    “And said parties of the first part further covenant and agree that upon the request of said party of the second part, its successors and assigns, it or they or either of them will proceed under the laws of the state of Ohio, and appropriate such real estate and rights and interests as may be required for the maintenance or operation of their or either of their lines of railroad; said party of the second part, its successors and assigns, paying all costs and damages therefor, or for which said parties of the first part or either of them may thereby become liable; and further, that upon like request, and at the cost and charge of said party of the second part, its successors and assigns, the said parties of the first part, their successors and assigns, will make and execute such further and other lawful deeds, assurances, and confirmations of the railroads and premises hereby granted, or intended so to be, unto the said party of the second part, its successors and assigns, as it or they shall reasonably or of right require; and the said party of the second part, its successors and assigns, hereby covenants and agrees with the parties of the first part, their successors aud assigns, that it will pay as rental for the aforenamed granted and demised railroads and appurtenances, thirty-three and one-third per centum of the total gross earnings and receipts of said granted and demised railroads and property, which said thirty-three and one-third per centum of said gross earnings and receipts it is hereby guaranteed by said party of the second part, its successors and assigns, shall not be less than three hundred thousand dollars ($300,000) in any one year during the continuance of this lease, aud if from any cause said thirty-three and onetliird per centum of the said gross earnings and receipts should in any year fall short of three hundred thousand dollars ($300,000), the said party of the second part, its successors and assigns will make up and pay each and every such deficit out of its or their own money, and whenever the said thirty-three and one-third per centum of the said gross earnings and receipts shall exceed in any one year the sum of five hundred and fifty thousand dollars ($550,000), all such excess shall inure to and be retained by the party of the second part. Said gross earnings and receipts are to be determined from the entire gross earnings and receipts from all sources whatsoever, or however derived, of the railroads and property hereby leased, or any portion thereof, and the business of the roads shall be so transacted, and the books and accounts thereof so kept by said party of the second part, its successors and assigns, as to clearly exhibit the said entire gross earnings and receipts without any deductions whatever. Said amount of three hundred thousand dollars ($300,000) per annum guaranteed rental shall be paid to the parties of the first part in equal monthly payments of twenty-five thousand dollars each, at the end of each and every month from the date of this lease; and the balance of the thirty-three and one-third per centum of the said gross earnings and receipts shall be paid quarter-yearly, on the first day of October, January, April, and July of each and every year from and after the date of this lease. Eight one-thirtieths of said guaranteed rental to be so paid to the said Columbus, Springfield and Cincinnati Railroad Company, and twenty-two one-thirtieths to said Cincinnati, Sandusky and Cleveland Railroad Company, and one-fifth of the balance of the said thirty-three and one-third per centum of the said gross earnings and receipts shall be paid to the said Columbus, Springfield and Cincinnati Railroad Company, and four-fifths to the said Cincinnati, Sandusky and Cleveland Railroad Company. Said party of the second part, its successors and assigns, further agrees that it or they will render to the said parties of the first part, their successors and assigns, properly detailed accounts of said gross earnings and receipts quarter-yearly, and will allow said parties of the first part, their successors and assigns, by their proper officers or employes duly authorized, such free access to its or their books, papers, and accounts, as may be required to ascertain the correctness of the accounts so rendered.
    “ Provided always, and these presents are upon the express condition that if the said party of the second part, its successors and assigns,-shall neglect or fail to pay to the said parties of the first part, their successors or assigns, the amount of rental hereinafter provided to be paid, or any part thereof, for a period of thirty days after the same ought to have been paid as aforesaid, or in case the said party of the second part, its successors and assigns, shall not from time to time, and at all times during the continuance of this lease, well and truly observe, perform, fulfill, and keep all and singular the covenants, conditions, and agreements hereinbefore or hereinafter contained, which are or ought to be kept and performed by said party of the second part, its successors and assigns, according to the true intent and meaning of these presents, then in any and every such case the said parties of the first part, their successors and assigns, shall have the right to re-enter upon said railroads and other premises hereby demised, and to repossess and enjoy the same as of their former estate; any thing hereinbefore contained to the contrary thereof in any wise notwithstanding, and the said.party of the second pai’t shall be liable to the parties of the first part and each of them for all damages which they or either of them may sustain by any default of the party of the second part; but no such forfeiture shall be declared unless the said party of the first part shall have first notified the said party of the second part of the default complained of, and request the performance of this contract in that behalf by the said party of the second part, its successors and assigns; and the said party of the second part, its successors and assigns, further agrees that it or they will diligently prosecute the building of the line of railroad from Indianapolis to Springfield, hereinbefore named, and complete the same and have it duly connected and in operation with the line of rail road of said party of the second part at said Indianapolis and with the line of railroad of said party of the first part at said Springfield, on or before January 1,1882, and will run and operate the said line of railroad in connection with the lines of the parties of the first part, and will not become interested in the earnings of any competing railroads to the roads of the parties of the first part or either of them; and said party of the second part further agrees that all business arising from its lines of railroad to said Springfield and destined for points north and north-east thereof shall be sent over the Cincinnati, Sandusky and Cleveland Railroad as far toward San-dusky as may he necessary to secure the greatest amount .of earnings therefrom to the parties of the first part, and all business destined for points east and south-east thereof shall be sent via Columbus over the Columbus, Springfield and Cincinnati Railroad; and the said party of the second part, its successors and assigns, hereby covenants and agrees with the said parties of the first part, their successors and assigns, that it and they will, during the term hereby granted, well and truly pay the rental, hereinbefore provided, promptly at the times and in the manner limited and prescribed herein for the payment thereof, according to the true intent and meaning of these presents; and that in computing the amount of the total receipts and earnings on the lines of the railroads of the parties of the first part it will allow on all through business between Peoria and Sandusky, and between Peoria and Columbus, full pro rata to each road, according to the number of miles hauled on each; and said party of the second part, its successors and assigns, further agrees thatñt and they will, during the continuance of this lease, maintain and keep in good order and condition, by renewals and repairs, the railroads and other property hereby demised, and to add such new cars, engines, and rolling stock as may be necessary to replace such as may become worn out or destroyed, so as to keep said equipment up to its present standard of value and efficiency; and to mark distinctly in the usual manner all such new cars, engines, and rolling stock, to denote that they belong and appertain to the Cincinnati, Sandusky and Cleveland Railroad Company, and so deliver them upon the railroad of said company, free from all liens, as its property, subject only as their other property, to the terms of this lease; and all such cars, engines, and other rolling stock shall be so distinctly marked as aforesaid, before leaving the shops or other places of manufacture. The party of the second part, its successors and assigns, will also make all renewals of track upon the railroads of the parties of the first part with steel rails of not less than fifty-six pounds to the linear yard, and will, as rapidly as good management may require, provide the entire tracks of the railroads of the parties of the first part with such steel rails; and will at all times keep and maintain the tracks of said railroads and each of them in first-class condition of repair; that it and they will also run and operate said railroads of the parties of the first part in such manner that the corporate rights and privileges of said parties of the first part shall not be impaired or endangered; that it will furnish the public all reasonable accommodation in the running of its trains and otherwise over said roads of the parties of the first part; that it will indemnify and save harmless the said parties of the first part from all liabilities and claims for damages and losses incurred and arising in any manner in the running of said railroads; and, in general, that it will operate said railroads of the parties of the first part and furnish such equipments, stations, and other appurtenances therefor, as are suited for and required by a railroad of the best class; and that it will use all necessary and possible efforts to facilitate and increase the business of the railroad hereby leased.
    “ The said party of the second part further agrees that it will pay all taxes and assessments whatsoever that may be levied by either the state of Ohio, or the United States of America, or under the authority of either thereof, on the roads and property hereby demised, or on their earnings and receipts, and on all dividends and interest which may be paid by the parties of the first part, but not including any taxes or assessments which may be made against the individual holders of the stock or bonds of the parties of the first part; that it will procure and keep policies of insurance in full force upon all bridges, docks, buildings, engines, cars, and other equipments and machinery, and other property hereby demised, to the extent at least of two-thirds of the full value thereof; and to have such policies written for the benefit of whom it may concern, and fully protecting and referring to the respective interests of the parties hereto, and in case of loss all sums received from underwriters of existing or future policies of insurance shall inure to the party of the second part, and to be expended in repairing or replacing, as the case may be, the property damaged or destroyed. The party of the second, part shall, whenever requested by the parties of the first part, or either of them, furnish a special car, and transport therein the board or boards of directors of the parties of the first part, or a committee thereof, free of cost, over the roads of the parties of the first part, as often as four times each year, if required; giving them suitable time and opportunity to examine the condition of the roads and other property hereby demised. The party of the second part, its successors and assigns, also further agrees that it or they will not transport any wood .or ties cut in any of the counties of the state through which the lines of the railroads of the parties of the first part pass at less than the regular local rates for timber, lumber, and wood. It is also mutually agreed between the parties hereto that in case the parties of the first part, their successors and assigns, shall fail to pay the interest or principal of the bonds or preferred stock herein before named, for a period of thirty (30) days after the same shall have become due and payable, the said party of the second part, its successors and assigns, may proceed and pay the same to the parties entitled thereto out of the rental created and provided for under this lease; and the amount so paid shall be charged to the parties of the first part and deducted from the money then due, or to become due, to the parties of the first part, under this lease. In case the parties of the first part should fail to extend the time of payment of any of said bonds, or negotiate new securities in lieu of them as hereinbefore provided, then the said party of the second part may renew the same at a rate of interest not in excess of that now payable in said bonds respectively, or may pay and discharge said bonds and have a lien upon the premises hereby demised for the payment of the same, and a credit on the rental herein-reserved of the amount of the interest on the .bonds so paid. It is also further mutually agreed and understood between the parties hereto that the Cincinnati, Sandusky and Cleveland Railroad Company sells to the party of the second part all the fuel, lumber, timber, new ties, oil waste, all new and old rails not in the track at the time this lease goes into effect, and all such stationery and other supplies furnished for use upon the lines of railroad hereby leased as may be available for use, and desired by the said party of the second part. An inventory and cost appraisal of the aforenamed supplies and rails shall be made before this lease goes into effect by three persons, one of whom shall be appointed by the parties of the first part, one by the party of the second part and the other by the two persons so appointed, the decision of either two of which shall he final both as to the quantities of said supplies and rails thus sold and their cost value as hereinbefore named. The total amount of which said cost value the party of the second part hereby agrees to pay in cash to the Cincinnati, Sandusky and Cleveland Railroad Company in or within thirty (30) days after this lease goes into effect.
    “ It is also mutually agreed that all the tracks, bridges, buildings, locomotives, cars, and other property of the parties of the first part hereby leased shall, as soon as practicable, and within sixty (60) days after the date of this lease, be duly inventoried and appraised in manner and form as hereinbefore provided for the inventory and appraisal of the supplies and rails; and said inventory and. appraisal, when completed, shall be copied in triplicate, one copy thereof to be placed for filing and record with the Indiana, Bloomington and Western • Railroad Company, and one copy for like purpose to each the Cincinnati, San-dusky and Cleveland Railroad Company and the Columbus, Springfield and Cincinnati Railroad Company, and also for the purpose of enabling the respective parties heretq the better to determine from time to time if any waste or’ depreciation of the property has taken place. Said appraisal to be made on a basis of value of gold coin of the United States of America; and at the termination of this lease a like inventory and appraisal shall be made in like manner of the same or substitute property, to determine whether all such property is then in good, better, or worse condition of efficiency; and the parties making such inventory and appraisal shall appraise the difference in value, if any, and any such difference shall be equalized by payment from one party to the other, as the case may require; and to have such waste, depreciation, or betterment and improvement, if any,, as the ease may be, restored and made good. It is also agreed by the parties of the first part that the party of the second part, its successors and assigns, shall have the right to use the name of the parties of the first part so far as it may be necessary for it to do bo in bringing any actions and in making any defenses.
    “ It is also further agreed by the party of the second part, its successors and assigns, that the Cincinnati, Sandusky and Cleveland Railroad Company shall retain to itself for its own uses and purposes all real estate it may possess, not appurtenant to its line of railroad or necessary for its use and operation; more particularly the properties recovered from Rush R. Sloan,its former president; and whereas,the said Cincinnati, Sandusky and Cleveland Railroad Company has heretofore leased the portion of its road between Springfield, in Clarke county, and Dayton, in Montgomery county, the said party of the second part assumes such lease and all existing contracts and agreements of said parties of the first part. And it is also hereby mutually agreed that if from any cause either of the parties hereto shall neglect or fail to appoint the person herein provided to act as appraiser for the inventorying and appraisal of the supplies aud rails, and of the track, locomotives, etc., hereinbefore named, it shall be competent for the appraiser appointed by the othar party to appoint both of such other appraisers. And it is further agreed that the party of the second part will furnish free of charge to the parties of the first part suitable rooms and accommodations in the general office buildings at Sandusky, Springfield, and Columbus, Ohio, for the offices of the president, secretaries, and treasurers of the parties of the first part; and that until the completion of the road of the party of the second part said party of the second part will not change the managing agents and employes of the parties of the first part, except with the consent of the president of said parties of the first part.
    “ In witness whereof, the said parties hereunto have caused this lease to be signed by their respective presidents and, attested by their respective secretaries, and have caused their corporate seals to be hereto attached the day and year above written in triplicate.”
    The lease was duly executed and delivered, and on May 1, 1881, the defendant took possession of .the roads and property leased, so far as it could, and holds the same. And since then, May 1, 1881, the defendant has received ,the rent and has enjoyed the benefits sucured to the lessor by the prior lease of November 28, 1870, which was so obtained by the defendant.
    At the end of the first quarter, after July 31, 1881, a dispute arose as to what rent the defendant should pay plaintiffs for the part of the road between Springfield and Dayton; whether it should be 33-jí per cent of the gross earnings and receipts of that part of the road, or only 33-J per cent of what was paid over to the defendant, either sum making more than the minimum amount to be paid. After the end of the second quarter, on February 18,1882, plaintiffs brought suit for the rent claimed and not paid; and they set forth the two leases in full, with amounts of gross earnings and receipt and failure to pay amounts due, and plaintiffs claimed judgment for the unpaid amount of 33¿- per cent of the gross earnings and receipts with interest.
    The defendant admitted corporate existence and denied every other allegation or statement.
    On the trial the court of common pleas gave judgment for the defendant. A bill of exceptions was taken; and on proceedings in error, the district court found, as matter of fact:
    “ That the defendant has operated since May 1, 1881, the plaintiffs’ railroads between Sandusky and Springfield and Springfield and Columbus, under the lease to it in said petition exhibited; and has received from the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company the thirty-five per cent of its gross earnings and receipts on that part of said railroad between Springfield and Dayton, under the lease in said petition first exhibited, from May 1, 1881, to the bringing of this suit; and that if the true construction of the lease from the plaintiffs to the defendant, exhibited in the plaintiffs’ petition, be that the defendant is obliged to account for and pay to the plaintiffs thirty-three and one-third per cent of the gross earnings and receipts realized by the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company by the operation of that portion of the plaintiffs’ road between Springfield and Dayton, under the lease in said petition first exhibited, then there is due and payable to the plaintiffs from the defendant the several amounts claimed in the plaintiffs’ petition 5 but that if the true construction of the said lease from the plaintiffs to the defendant be that the defendant is required to account for and pay thirty-three and one-third per cent of the rental only, due from and paid by the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company for the use of that portion of the said railroad between Springfield and Dayton, under the lease in said petition first exhibited, then and in that case there is nothing’ due from the defendant to the plaintiffs, on the cause of action set forth in the plaintiffs’ petition.
    “And it further appearing to the court, all the judges concurring therein, that the decision of the question as to which of said constructions of said lease under the facts and circumstances set forth in the bill of exceptions in this case, is the true construction of the lease from the plaintiffs to the defendant, involves difficult and important questions of law, and all the judges of this court being of opinion that this cause ought to be reserved, it is by the court, on motion of the plaintiffs, ordered that this cause be, and the same is hereby reserved for decision in the supreme court.”

      Bowman § Bowman and JR. P. JRanney, for plaintiffs in error.

      West, Walker ‡ West and G. W. Fairbanks, for defendant in error.
   Eollett, J.

The parties desire “ the true construction of the lease from the plaintiffs to the defendant,” as to one matter only ; what rent shall now be paid to plaintiffs for the part of the railroad from Springfield to Dayton?

The corporate existence of the parties is admitted, and their competency to make the lease is not questioned. There is no claim, by either party, that there was any mistake or fraud on the part of anyone; and neither party asks for any reformation or change of any part of the lease. There does not seem to be any substantial dispute between the parties as to the legal principles that govern the construction of the lease; and all agree that the per cent to to be paid is 33-J- per cent. But they dispute as to the basis on which to compute the amount of rent to be paid.

Is such basis the entire gross earnings and receipts of all the property and railroads owned and leased by the plaintiffs, including the part from Springfield to Dayton? This is the claim of plaintiffs; and the defendant admits that such basis would be correct if the defendant controlled and operated the entire line of railroad, and that such a basis will be correct when the prior lease is ended and the defendant comes into possession of the part from Springfield to Dayton. The defendant claims that the correct basis now should not include the gross earnings and receipts of the part of the railroad from Springfield to Dayton, but only the 85 per cent rents received by the defendant from the company operating that part.

The dispute is shown as follows: During a certain time the gross earnings and receipts of that part of the road are $300,000, of which 35 per cent ($105,000) as rent is paid to the defendant. Plaintiffs claim that the 33J per cent of the $300,000, which is $100,000, should be paid to them; but defendant claims it should pay only 33J- per cent of the $105,000 rent received by it, which is $35,000, making a difference to each party of $65,000 for each $300,000 of such gross earnings and receipts. An examination of this lease of March 8,1881, shows that the defendant agreed to “payas rental for the aforenamed granted and demised railroads and appurtenances, thirty-three and one-third per centum of the total gross earnings and receipts of said granted and demised railroads and property.’" And the lease provides that, “said gross earnings and receipts are to be determined from the entire gross earnings and receipts from all sources whatsoever, or however derived, of the railroads and property hereby leased, or any portion thereof.”

The railroads and property thus leased are generally described by the lease as “the entire railroads of the said parties of the first part, lying in and extending from the city of Sandusky, in Erie county, to the city of Dayton, in Montgomery county; and from the town of Cary, in Wyandot county, to the town of Eindlay, in Hancock county; and from the city of Columbus, in Eranklin county, to the city of Springfield, in Clarke county, all in the state of Ohio; now constructed, or which shall hereafter be constructed, as provided in this agreement.” There follows the above a more minute description of the property leased.

The following plat will convey some idea of its location:

The part of the railroad from Springfield to Dayton is expressly included in the part extending from Sandusky to. Dayton. And it is not claimed that this part is included by mistake, or that the lease anywhere excludes such part. This language is plain and specific, and includes the entire line of railroads, and provides that the “gross earnings and receipts” of the entire line shall be the basis for computing the rent. We need not add to the principles of construction as gathered and stated in Lawler v. Burt, 7 Ohio St. 340, 349. It is claimed that certain facts as to the property, and certain words and covenants of the leases, require this language to express a meaning other than the words seem to import; and that the words “ gross earnings” apply to the part of the property not included in the prior lease, and the word “receipts” to the part in the prior lease.

To have such effect, the other meaning must clearly appear to be intended.

It is stated that the plaintiffs did not put the defendant into immediate possession and control of every part of the railroad.

It may be answered at once, that the defendant agreed with plaintiffs that it should not have such possession and control, and yet the parties used this language as to the basis of rent. "When this lease was made all the parties knew that the prior lease 'of November 28, 1870, was in successful operation; and that the lessee had assigned that lease to the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, an efficient and responsible company; and that the lease was of great value to the lessor. These parties also inserted the following provision in their lease: “And whereas, the said Cincinnati, Sandusky and Cleveland Railroad Company has heretofore leased the portion of its road between Springfield, in Clarke county, and Dayton, in Montgomery county, the said party of the second part assumes such lease and all existing contracts and agreements of said parties of the first part.” The context shows the intended meaning of the word “ assumes.” The parties use it in its original meaning, not in its acquired, meaning. The defendant assumed such lease; it thus took to itself — accepted—the obligations, the contracts, and agreements, and the benefits of the lessor in that prior lease. These parties agreed that their lease was made having regard to the provisions of the prior lease. The obligations or the benefits of the prior lessee are not assumed; such obligations remain upon the party that agreed to fulfill them, and such party must now perform them for the benefit of the defendant.

The situation of the defendant is very similar to what it would be had the plaintiffs and defendant made their lease first, and after that the defendant had made the assumed lease with the company now operating that part of the road. Had this been done, no question could arise as to the basis for computing the rent due plaintiffs on their lease with the defendant; the plain language of the lease states a basis. The defendant, when it obtained these leases from plaintiffs, 'was seeking to extend its line of railroad from Pekin, in the state of Illinois, through Indiana, and to Springfield, Ohio; and it leased plaintiffs ’ property “ so as to form a continuous line for the passage of cars, and thereby to increase its facilities for doing ah east and west bound business, and to render more profitable the large amount of freight and passenger business it expects to bring to said Springfield.”

The defendant took immediate possession of plaintiffs’ roads east and north of Springfield, and made them parts of its extended system of railroads east and west and north. By the provisions of the lease assumed the part of the road from Springfield to Dayton had become part of a trunk road from the city of Cincinnati, by way of Dayton and Springfield, to Cleveland, Sandusky, and Columbus. The defendant thus acquired the benefits of a connection with, and interest in, a system of railroads extending south; and the value of such benefits need not be discussed. Thus it is conclusive that, by the provision, “ the said party of the second part assumes such lease and all existing contracts and agreements of said party of the first part,” the defendant did not simply take the obligations of the lease assumed, but it did obtain the great benefits secured to the lessor therein. The defendant obtained these valuable benefits which it sought to secure, and all the control and possession it purchased and agreed for, with power to take full and entire possession and control of the remaining part whenever there is a failure to fulfill the covenants of the prior lease. And we see no reason why the true construction of this lease does not depend upon the words the parties have used in the lease.

The defendant agreed to pay “thirty-three and one-third per centnm of the total gross'earnings and receipts of said granted and demised railroads and property.” And the lease describes the entire railroads and property. What are gross earnings and receipts ? Surely they are not net earnings and receipts. It has been earnestly contended that the word “receipts” expresses something separate from earnings, and was intended to include only the thirty-five per cent rent paid under the prior lease. But the parties have not so expressed it in the lease; and, on final argument, the defendant admitted that, as the parties had used the words “gross earnings and receipts,” these words may be taken together as expressing the same thing, unless other parts of the agreement require a different construction. We think this is the correct rule, especially to bind the defendant in its promises.

No other words of this lease can require such a separation and limitation of meaning. There are no provisions that the rent shall be gross earnings and receipts only of the parts operated by the defendant, and different for the parts not so operated. No one could claim such a result would follow should the defendant sub-lease the parts it now operates.

It is claimed “ that in several places where the words demise and grant are used they are evidently used in a restricted sense, and apply to the parts of the roads not before leased; ” and so “ gross earnings ” apply to all income except the rent from the part from Springfield to Dayton, and this rent was called “ receipts.” But it is not claimed that the words “ demise ” and “grant ” were only so used in a restricted sense. And if the words “demise and grant ” did not convey the entire line of railroads, including the part from Springfield to Dayton, whát becomes of the defendant’s admitted right to the possession and control of that part of the road when the prior lease shall be ended ? The lease provides that the “ gross earnings and receipts” are from the property and railroads “ demised and granted ” in the lease; and the language applies these words to the entire line.

We are asked to compare the provisions of the two leases, to find that the meaning of the word “ receipts” is limited to the thirty-five per centum rent paid to the defendant. It must be conceded that the words “gross earnings and receipts, ” in the prior lease where no rents are received are used together and used to- express one thing only. In that lease there are no receipts aside from the gross earnings, yet the parties there use the words “ gross earnings and receipts ” as the basis for computing rent. And these parties must admit they are so rightly us'ed. We are asked to look at the covenants “ as to keeping the accounts of the gross earnings and receipts, and the time of the payment of the rental,” to aid in separating the word “ receipts ” from “ gross earnings and receipts.” In one case the original lessee or assigns must keep the accounts and render a semi-annual statement; in this Jease the defendant must keep the accounts; and every quarter the defendant must render an accurate detailed account. The original lessee need not render an account only each six months, but the account must show the quarterly business, as payments are required quarterly. So far as appears such accounts show the monthly business; and whether they do so or not, the defendanthas agreed to render quarterly statements, and no one asserts it is not able to do so. So far there is no complaint before us that each party has not known the amount of gross earnings and receipts of each quarter. The exact amount of the first quarter, and the amount of the second quarter, seem to be well known.

As to times of payments, in this lease it is $25,000 each month; and the quarterly remaindermust he paid on the first days of January, April, July,and October, and thirty days grace is allowed. In the prior lease the time is within thirty days after the last days of December, March, June, and September. The qnai-ters end substantially at the same time.

Again, it is claimed, the defendant’s covenant to renew the tracks of the roads leased “ with steel rails of not less than fifty-six pounds to the linear yard,” could apply only to the roads in the possession and control of the defendant, as the defendant could not repair the road, and as no such provision is in the prior lease. But this claim overlooks a more important provision of each lease. In the prior lease the lessee covenants “in general that it will maintain said railroad in such condition and that it will operate the same and furnish such machinery, cars, equipments, stations, and other appurtenances as are suited and required by a railroad of the best description.”

In this lease the lessee covenants that it will “ furnish such equipments, stations, aud other appurtenances therefor, as are suited for and required by a railroad of the best class.” All agree that steel rails are now “ suited and required by a railroad of the best description,” and so the prior lease provides for such rails; and, in the future, rails of a quality much better than steel may be “ suited for and required by a railroad of the best class.” And when required they must be furnished under the prior lease, or the defendant, by virtue of the prior lease, may take possession of that part of the railroad and hold it under his lease with plaintiffs.

Thus the defendant has the power to fulfill every one of its covenants in this lease, as and when applied to the entire line of railroads,, either by its own acts or by compelling another to act.

Whether or not either of these agreements is profitable is not before us. It does not appear that either one is not profitable.

We find nothing in either lease that requires the wmrd receipts ” to be applied only to the thirty-five per cent rent paid under the prior lease to the defendant, or that should separate it from the expression “gross earnings and receipts,” as used and applied throughout both leases.

The parties here made but one lease. ' The defendant entered into its plain and specific covenants, knowing and accepting the provisions of the prior lease, with plaintiffs’ consent. The agreement to pay, as rent, thirty-three and one-third per centum of the total gross earnings and receipts of the granted' and demised railroads and property is definite and distinct, and its meaning is not changed or limited by any words or covenant of either lease, or by any fact shown.

The plaintiffs were entitled to judgment as prayed for.

Judgment reversed, and judgment for plaintiffs.