Railroad v. Himmelberger. other place for use or storage. The word rigging is a common English one, and when applied to the handling of heavy loads, whether of timber, metal or stone or other similar material, means the tackle, lines and fastenings with which the task is accomplished, without regard to the material, whether metal or vegetable, from which they are fabricated. In this case it would be an absurdity to hold that it referred to the ropes in use to support the building or structures in use at the time. Had the men to whom the order was given proceeded to unfasten the wire rope, which supported the wooden floor beam so as to let the second floor down into the room below it would not have shown a more fundamental misconception of a plain order than did the unfastening of the rope which was tied to it and supported the scaffold in use below. Although in our opinion the evidence tends strongly to show that the rope supporting the scaffold was untied and cast off by the workmen on the second floor of the building, there is no evidence of negligence of the foreman in giving the order in evidence. It follows that the judgment of the trial court must be affirmed and it is so ordered. of PER CURIAM.-The foregoing opinion BROWN, C., is adopted as the opinion of the court. All the judges concur. MORLEY & MOREHOUSE RAILROAD COMPANY et al., Plaintiffs in Error, v. JOHN HIMMELBERGER et al. Division One, December 24, 1912. 1. SUPPLEMENTAL CONTRACTS: Construction. A note, contract, supplemental contract, assignment and deed of trust, made upon the same day and concerning the same subject-matter, must be read and construed together as parts of the same transaction where by their express terms they constitute one single agreement. Railroad v. Himmelberger. 2. CONTRACTS: Construction: Freight Rates. Certain freight rates were guaranteed to defendant's assignor by the plaintiff railroads, with the provision that his assignee should have the right to ship under those rates its own freight and that of any manufacturing firm or corporation in which it might own stock. The assignor bound himself and his assigns to furnish freight worth $5000 a year in earnings for five years, and by a supplemental agreement the assignee bound itself, as far as practicable, to give the plaintiff railroads the preference on all shipments of freight made by it from or to a certain point. Held, that the assignee is not liable in damages for failing to procure for the railroad the preference in freight beyond $5000 a year from a corporation in which the assignee was interested. 3. 4. 5. : :Subsequent Reference. By part "a" of section 5 of an agreement settling freight rates between plaintiff railroads and defendant's assignor certain specified rates were guaranteed to the assignor on freight from point A to points B, C and D, and part "d" of the same section read, "rates on the same basis to and from other points on said railroad." Held, that a subsequent reference in the agreement to "rates as aforesaid" includes the provisions of part "d" as well as of part "a." : : Lowering Contract Rate. An agreement fixing freight rates and regulating the hauling of freight required the application of the proceeds of certain freight charges to the payment of a debt, and a provision of the agreement says specifically that lower than contract rates, if given, shall not affect any part of the agreement. Held. that a reduction of the rate on one kind of freight covered by the agreement does not avoid the necessity of applying the proceeds from hauling that freight to the payment of the debt. ·: ——————————: Time of Payment of Debt. Defendants' assignor lent the plaintiffs, owners of railroad lines, money to build an extension line. The contract entered into when the money was lent provided that the party furnishing the money, or his assigns, was to ship, for five years from the date of a note mentioned (which the parties knew was made and dated that same day), sufficient freight to produce earnings amounting to $5000 each year, half of which sum was to be applied each year to the payment of the said note evidencing the debt. Held, that the five-year period began to run at the date of the note, and not at the time of the completion of the extension line. 6. EVIDENCE: Judicial Notice: Constructing Railroad. The Supreme Court cannot take judicial notice of the time reasonably necessary for the construction of a railroad. Railroad v. Himmelberger. 7. CONTRACTS: Construction: Payment: Sum Certain Each Year. An agreement to furnish freight to plaintiff railroad companies in such quantities that one-half the total earnings thereon should "amount to not less than $2500 each and every year for five years," which sum was to be applied upon a note executed by the railroads to the shipper, meant that $5000 in freight earnings must be furnished each year, and the excess in two of the five years cannot be credited on deficiencies in previous years. 8. 9. 10. : : - -: Note: Credit. Defendants' assignor lent money to the plaintiff railroad companies and agreed to furnish them freight in such quantities that onehalf the total earnings thereon should amount to not less than $2500 each and every year for five years, which sum was to be applied upon the note evidencing the debt, the note providing that it was to be paid as in said contract specified and not otherwise. Held, that a deficiency resulting from a failure in a certain year to furnish the requisite amount of freight must be credited on the note up to the amount of $2500. : Freight Rates: Railroad's Failure to Furnish Cars. Where shippers agreed to furnish the plaintiff railroad companies freight in such quantities that one-half the total earnings should amount to $2500 each year, which sum was to be applied upon a note executed by the companies, a deficiency resulting from a failure to furnish the requisite amount of freight in a certain year due to the failure of the railroads to furnish cars should not be credited on the note. : Note: Sale of Interest in Property by Maker: Liability. Defendants' assignor lent money to the plaintiff railroad companies and agreed to furnish them freight in such quantities that one-half the total earnings thereon should amount to not less than $2500 a year, which sum was to be applied upon the note evidencing the debt, said note providing that it was to be paid as in said contract specified and not otherwise. Held, after elimination of plaintiff's claim for damages for breach of contract, that the sale of their railroad by the plaintiff companies would not take away their right to a credit on the note for a deficiency in freight furnished them. 11. APPEAL: Issues: Not Raised by Pleadings. Issues not raised by the pleadings need not be considered by the Supreme Court. Appeal from Cape Girardeau Court of Common Pleas. Hon. Benjamin F. Davis, Judge. AFFIRMED (conditionally). Railroad v. Himmelberger. John A. Hope, Giboney Houck, R. G. Ranney and M. R. Smith for plaintiffs in error. Oliver & Oliver and Brown, Geddes, Schmettau & Williams for defendants in error; R. B. Oliver and Clarence Brown of counsel. BLAIR, C.-This is a suit to cancel a note and deed of trust and for damages for breach of a contract to furnish freight to be transported by plaintiff railroads. July 1, 1897, Stephen B. Hunter entered into a written agreement with the Morley & Morehouse Railroad Company, Houck's Missouri & Arkansas Railroad Company and Louis Houck whereby he undertook to furnish $20,000 for the purchase of railroad materials, payment to be made on delivery of the rails, etc., to the Morley & Morehouse Railroad Company. The two railroad companies and Louis Houck agreed to execute the following instrument: "Five years after date we promise to pay to Stephen B. Hunter the sum of twenty thousand dollars with eight per cent interest per annum from date, all interest payable annually, for value received. "This note is made in pursuance of a contract entered into on the first day of July, 1897, between the said Stephen B. Hunter and the Morley & Morehouse Railroad Company, Houck's Missouri & Arkansas Railroad Company and Louis Houck, and interest and principal is to be paid as in said contract specified and not otherwise and the said contract is hereby declared to be a part and parcel of this note." The Morley & Morehouse Railroad Company further agreed to execute to Hunter a trust deed on the proposed line from Morley to Morehouse, and as additional security Louis Houck agreed to deposit in a named bank $20,000 in the bonds of Houck's Missouri & Arkansas Railroad. By section five of the agree Railroad v. Himmelberger. ment, in consideration of the advance of money made, certain specified freight rates were guaranteed to Hunter and his assigns: (a) on lumber and all other manufactured forest products from Morehouse to Cape Girardeau, East Cape Girardeau and Commerce; (b) on logs and spoke butts from any point on the Morley & Morehouse Railroad, Hunter and his assigns to have the right to haul logs with their own engines and cars at the same rates; (c) on ties and piling to Cape Girardeau and Commerce, coupled with a covenant to give rates on these articles as low as given any other shipper; (d) "Rates on the same basis. to and from other points on said railroad, and on other timber and lumber shipped not enumerated." These rates were stated to constitute part of the consideration for the advancement of the $20,000 and to be of the essence of the contract and to this provision was added: "But nothing herein shall be so construed as to prevent the said party of the second part from making a lower rate to the said party of the first part, if they so desire, and if said rates are so made this shall not be construed as in any way or manner abrogating, canceling or nullifying this contract or any part thereof." It was also stipulated that Hunter might "transfer his rights as to the said freight rates" under the contract and that his assignee should have the right to ship under contract rates his own freight and that of any manufacturing firm or corporation in which he owned stock or had an interest. Section eight reads as follows: "8th. The said party of the first part, for five (5) years from the date of the note aforesaid, hereby agrees, contracts and binds himself, unless prevented by fire or other unavoidable accident to give, furnish and deliver, or cause to be done by others, to whom he may assign or transfer his rights hereunder, to the said Morley & Morehouse Railroad Company and the |