ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
MR. JUSTICE GRAY delivered the opinion of the court.
This was an action of covenant, brought July 30, 1885, by the Central Transportation Company against Pullman's Palace Car Company to recover the rent or sum of $132,000, due for the first two quarters of the year 1885, under the indenture of lease of February 17, 1870, counted on in the other case between the same parties, argued at the same time, and just decided,
ante, 24. The plaintiff obtained a verdict and judgment for $119,729.13; and the defendant sued out this writ of error.
In the present action, which was tried before the other was brought, the objection that the contract sued on was ultra vires was not pleaded, nor in any way brought to the notice of the court below. The defendant, therefore, is not entitled to avail itself of it upon this writ of error. Bell v. Bruen, 1 How. 69; Marine Bank v. Fulton Bank, 2 Wall. 252; Klein v. Russell, 19 Wall. 433; Badger v. Ranlett, 106 U.S. 255; Union Trust Co. v. Illinois Midland Co., 117 U.S. 434, 468. Whether, under these circumstances, this court, of its own motion, might take this objection need not be considered, because upon another ground the verdict must be set aside and a new trial ordered.
The defendant pleaded only two pleas, the first of which was simply "covenants performed, absque hoc," (according to the form used in Pennsylvania,) which put in issue the performance of the defendant's covenants, as well as the performance of the plaintiff's covenants, as alleged in the declaration, but not the execution or the validity of the contract sued on. Wilkinson v. Pittsburg Turnpike Co., 6 Penn. St. 398; Farmers' & Mechanics' Turnpike Co. v. McCullough, 25 Penn. St. 303.
The other plea set up an agreement between the parties, dated February 27, 1885, which recited the eighth covenant in the original indenture of lease, in these words:
"8th. In the event that any of the railroad companies mentioned in the assigned contracts shall at any time during this agreement refuse to permit the cars of the second party to be run on and over their respective lines of roads, so that, by reason of such prevention or refusal, the profits, income and revenue derived from and under any other remaining contracts with other and remaining railroad companies mentioned in the assigned contracts shall fall below the sum of two hundred and sixty-four thousand dollars, then, and in that event, said second party shall have the right either to declare this contract null and void and surrender to said first party the said hereinbefore demised property, or shall and will pay, in like manner, in lieu of the said sum of two hundred and sixty-four
thousand dollars, such sum or share of the net revenue from the remaining lines of the roads as the parties hereto may at that time agree upon."
The agreement pleaded also recited the refusal of some of the railroad companies therein mentioned to permit the leased cars to run over their roads, leaving only certain lines over which the defendant was still running cars under a contract with the Pennsylvania Railroad Company, which expired January 27, 1885; and that the defendant was negotiating a new contract with that company, the annual income and revenue to be derived from and under which, applicable to the payment of rent under the indenture of lease, would fall much below the sum of $264,000, the rent agreed on in that indenture; and that it had become necessary to modify that indenture in respect to the rent and otherwise.
By this agreement, in consideration of the premises, it was agreed that an annual rent of $66,000, in equally quarterly payments, together with one-fourth of the taxes to be paid by the plaintiff to the State of Pennsylvania, should be paid by the defendant to the plaintiff, in lieu and in stead of the aforesaid sum of ...