reach the terminus at or near Pensacola un-, cise human agencies to the point of excludtil after March 1, 1913, to wit, on March 22d ing negligence under the above test, and if or 24th of that year. Much proof was in- this be true human agencies are not excludtroduced touching the stages the construc- ed from consideration as factors. tion work had reached on that date and later dates referred to below.

The railway company defended on the ground that a strict compliance within the contract limits of time (March 1, 1913, for transportation of sawmill outfit, and May 1st, for general traffic) was "prevented by weather conditions or other causes beyond its control"; and it specified: (a) Bad weather in the winter of 1912-13; (b) scarcity of labor; (c) difficulty in getting a supply of ties for the laying of permanent track; and (d) unanticipated trouble and delay encountered in a cut called Summit Cut by reason of a peculiar mud or clay called "gumbo" discovered therein.

In Chicago, etc., R. Co. v. U. S., 194 Fed. 342, 114 C. C. A. 334, it was said in respect of the closely related phrase "unavoidable cause": "An

'unavoidable cause'

is a cause which reasonably prudent and cautious men under like circumstances do not and would not ordinarily anticipate and whose effects under similar circumstances they do not and would not ordinarily avoid."

The paucity of decisions construing the words "beyond control" and "unavoidable cause" in commercial and building contracts must be remarked.

Briefly summarized the conditions encountered in the cut referred to were as follows: A material called "gumbo," a blue mud or clay, was found in large quantity. This is described in the proof as being a very peculiar formation, much harder to remove than rock, requiring three or four times as long to remove, and costing about four times as much. Various appliances were used in efforts to take out this mud or clay. One witness testified:

We agree with the chancellor in his findings of fact that specifications (a), (b), and (c) did not operate to allow the railway any extension of time for the construction work. So concurring, we shall not burden this opinion by a discussion of these questions of fact. The chancellor expressed doubt as to the merits of the last specification (in relation to the "gumbo" material in the cut), whether "That he worked at Summit Cut from the it operated to extend the time. He resolv- time it was commenced until it was finished; ed the doubt, however, against the railway that in the north end of the cut they struck a company on the theory that the phrase, "un-blue pipe clay, which was the biggest vein of this material that he ever saw; that it was less prevented by other causes beyond its blue, black mud, as stiff as it could be and so (the railway company's) control," refers only hard to handle that you could not do anything to causes which were the acts of God, or of with it; that about half of the cut was compublic authority. Is the chancellor's view posed of this clay; that dynamite would shoot it up in blocks-that is, if you loaded it heavy sustainable? enough you could shoot it up in blocks, as big as a wagon bed; that it would spread it out and you would have to cut into it with shovels and cut it up and load it on the car; that you would have to take a paddle or your hand to

By "act of God" is meant a happening, due directly and exclusively to a natural cause or causes in no sense attributable to human agencies, which happening is not to be re-pull it off the shovel; that they kept a tub of sisted or prevented by the exercise of such foresight, prudence, diligence, and care as the situation of the defendant party may reasonably have called it to exercise.

Since human agency or intervention is to be excluded from creating or entering as an element into such an act causing injury, we have for consideration whether the contract phrase is the legal equivalent of the "act of God," as the chancellor held. We are of opinion that the phrase comes nearer to being synonymous with "unavoidably prevented," and that it can hardly be the equivalent of what is called the act of God; but it cannot mean less than that there must have interposed some hindrance which the railway company, as the actor party, could not foresee or overcome by the reasonable exercise of its powers and the use of the means and appliances that were, or in the exercise of commensurate care should have been, available. What is meant is that the happening must not have been occasioned in any degree by the want of such foresight, care, and skill as the law holds one in like circumstances bound to exercise. The words "beyond control" fairly imply a pledge to exer

water there to dip the shovels in so as to make the mud slip off; that you had to chain the turning them over when they dumped the madump cars to the rail in order to keep it from terial because the material would stick to the cars and you would have to take a mattock and they first began the cut they commenced on each rake it off of the bed of the car; that when end and put in plows and scrapers to scrape it out and ran them as long as they could; that when they struck this pipe clay the horses mired down in it and they had to quit that."

The use of wheelbarrows and then of a steam ditcher was resorted to, but the mud would stick to the dipper of the ditcher, and no speed could be made with it. A laborer would stick a pick in the clay, and it would take both of his hands to get it out without bringing any material with it. When it rained the clay would spread out and submerge the track, which had to be jacked up and other timbers placed under it. It was a difficult matter to hold laborers at work; at first they were paid a wage of a time and a half, and before completion they were paid double time for work in this cut; and even with that the crew was constantly changing; few would work in the cut over a week at a time, making it necessary to carry a number of

men as a reserve force. Work was prosecut- [ the signification of the word "completed." ed day, night, and on Sundays in efforts to re- The latter word has been construed in a nummove this material. ber of reported cases, and certainly "constructed" can carry no stronger implication favorable to complainant Spruce Company.

Treating June 1, 1913, as the test date for the purpose, arrived at as above shown, Was the road at that time constructed and placed [3] Another position sought to be mainin operation for general traffic, within the tained by complainant is that the railroad meaning of the contract? Yes, and prior was not constructed and placed in operation thereto. as the contract contemplated, in that the The word "constructed" in such a connec- defendant company never purchased any

Commerce Commission and the Supreme by law were clearly entitled, and, indeed, Court of the United States. compelled, to collect the full interstate rate which was currently in force from Black Mountain Junction.

In Northern Pine Manuf. Ass'n v. Chicago, etc., R. Co., 33 Interest. Com. Com'n R. 360, there was under consideration rates on lumber from producing points in Michigan to consuming points in trans-Mississippi states, through the twin cities of St. Paul and Minneapolis. Upholding the reasonableness of the rates it was said:

[6] Viewing and testing from another angle these contentions of the parties, a like result is reached: To adopt the complainant's construction of the contract on this point would make that contract contravene the Interstate Commerce Act, and lead to the contract's de"The through rates from the producing points nunciation as being in preferential favor of are made by the addition of arbitraries to the the complainant as a shipper. If the threeso-called 'stem rate' of 18 cents per 100 pounds from the twin cities to both the upper and lower cent portion of the joint through rate should crossings of the Missouri river. Neither the inure to the benefit of complainant, it would arbitraries nor the 'stem rate' represent actual in so far have an undue and forbidden preferdivisions of the through rates. In general the carrier which moves the traffic from the producence over other shippers of lumber and forest ing point to the twin cities receives more than products located on the defendant's line of the arbitrary, and the carrier from the twin railway. cities to destination receives less than the 'stem Tenn. rate."

Southern R. Co. v. Linear, 138 198 S. W. 887; Dayton Coal & 1. Co. v. Cincinnati, etc., R. Co., 134 Tenn. 221, Again, in the case In re Alleged Unreason-183 S. W. 739, affirmed 239 U. S. 446, 36 Sup. able Rates on Meats, 23 Interest. Com. Com'n R. 657:

"It is necessary to say that, in making the above observations as to the additional allowance for the two-line haul when long distances are involved, it was not intended to intimate that a short line should be confined in its division of the joint rate to merely the amount which an application of the mileage scale would produce. What is a fair division between carriers is to be determined in each case upon the merits of that particular case."

In U. S. v. Louisiana & P. R. Co., 234 U. S. 1, 34 Sup. Ct. 741, 58 L. Ed. 1185, and U. S. v. Butler County R. Co., 234 U. S. 29, 34 Sup. Ct. 748, 58 L. Ed. 1196, it was contended by counsel that where the commission had fixed a joint or through rate on forest products, it had no power to prescribe the proportions or divisions of such rate to be received by each carrier party thereto, when the latter had agreed among themselves, but the court held that this power existed so far as to prevent undue preferences to one shipper over another; and, referring to allowances made to tap-line railways by trunk lines, said:

"If the divisions of joint rates are such as to amount to rebates or discriminations in favor of the owners of the tap lines because of their disproportionate amount in view of the service rendered, it is within the province of the commission to reduce the amount so that the tap line shall receive just compensation only for what it actually does."

Thus, as we conceive, is recognized the right of trunk line participants to compensate a tap, branch, or feeder line of railway on the basis of just compensation for services performed, including in the reckoning an allowance for originating the traffic. Indeed, the sole limitation on the power of the carriers to contract in that regard seems to be fixed on the line of no subversion of the act of Congress by causing, in effect, a discrimination as between shippers.

If for any reason the three-cent concession was illegally absorbed by the defendant railway company, it would not inure to the benefit of complaint, but would stand to be return

Ct. 137, 60 L. Ed. 375; Roberts v. Nashville, etc.. R. Co., 135 Tenn. 48, 185 S. W. 69; Louis. & N. R. Co. v. Maxwell, 237 U. S. 94, 35 Sup. Ct. 494, 59 L. Ed. 853, L. R. A. 1915E, 665. A contractual obligation cannot support or justify such unlawful discrimination; otherwise the policy of the law could be easily defeated. A state court would not assume jurisdiction and grant complainant a recovery on such an agreement in violation of federal laws.

[7] Where a contract may fairly be construed not to be violative of law, the courts should incline to give it that construction, and thus maintain its validity. Gernt v. Floyd, 131 Tenn. 122, 174 S. W. 267; Morgan Bros. v. Coal & Iron Co., 134 Tenn. 228, 262, 183 S. W. 1019, Ann. Cas. 1917E, 42. That such construction may, and we think must, be given the instant contract, we have al

ready seen.

[8] In relation to these matters complain

ant company insists that there is no proof that the Black Mountain Railway Company became a "participating carrier," so as to make operative the principles just adverted to. It is argued that though the published lumber tariffs of the Carolina, Clinchfield & Ohio Railway name the Black Mountain Railway Company as a participating carrier, yet formal concurrence on the part of the latter is not shown. It is urged, further, that the Hepburn Act (U. S. Comp. St. 1916, § 8563 et seq.) means that the Interstate Commerce Commission shall require participating carriers to file with that body evidence of their acceptance of or concurrence in joint rates published by other carriers assuming to act for all of those named as participants. Counsel of complainant argue that the presumption is that said commission has complied with the law by calling for the filing of evidence of such concurrence, because it was its duty to do so.

However, a like presumption obtains that

While a tenant in possession whose lease contains no provision for renewal cannot compel a renewal, nevertheless he has such a likelihood of procuring a renewal, which is called a "tenant-right of renewal," that equity will 4. GOOD WILL 6(2)—SALES-PROTECTION— protect it.

complied as was its duty. We held in Louis- [ 3. LANDLORD AND TENANT 84-RENEWALville & N. R. Co. v. Hobbs, 136 Tenn. 512, 190 "TENANT-RIGHT OF RENEWAL.' S. W. 461, following Cincinnati, etc., R. Co. v. Rankin, 241 U. S. 319, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265, that it would be presumed that an interstate carrier complied with the law in filing and publishing a schedule of rates. The same reasoning requires the court to presume right conduct and compliance with lawful demands in respect of the filing of evidence of its concurrence by the defendant railway company.

It follows, therefore, that the chancellor was in error in decreeing in favor of complainant on the claim of right to take the benefit of the three-cent concession to the rail way company.

[9] A further contention remains for disposition: Complainant in its assignments of error insists that it has been overcharged on cars that were equipped by it with standards placed on gondola and flat cars to hold lumber in place while in transit. The claim is that under certain conditions 500 pounds per car so equipped must be deducted from the weight of lumber-loaded cars going to destination points out of the state of North Carolina, the tariff stipulations of the regulating authority so providing. It appears that complainant may have a just claim in some amount, not shown in the record before us, under this head; and the decree to be entered in this court will reserve to complainant the right to litigate the same hereafter, in a court, or before the Interstate Commerce Commission for reparation, as it may be advised. We do not adjudicate whether the courts of this state would have jurisdiction in any event of such claim, but leave that and all other phases at large and unprejudiced by anything decreed in this cause.

A decree will pass modifying the decree of the chancellor in the respects set out above, and awarding accordant relief. Costs of the cause, including the costs of the appeal, will be paid two-thirds by complainant, and onethird by the defendant railway company.

FINE et al. v. LAWLESS et al. (Supreme Court of Tennessee. Feb. 11, 1918.) 1. GOOD WILL 6(2)-NATURE OF RIGHTPROTECTION.

"Good will" is property in the sense of being a thing subject to be damaged, and an injunction will lie to protect it when the seller of the good will thereafter wrongfully interferes with it or the property conveyed of which the good will is an incident.

2. GOOD WILL

6(4)—SALE-STIPULATION. Upon a sale of the good will of a business without more, the seller is not precluded from setting up a precisely similar business at another stand in the same locality, and if the purchaser desires to forestall such step he must expressly stipulate against it.

"TENANT-RIGHT OF RENEWAL."

Where the seller of a business conducted in demised premises assigned the lease and conveyed the "good will," which includes the possibility that old customers will resort to the place and any other positive advantage acquired arising out of the business of the old firm whether connected with the premises where it was carried on or with the name of the late firm, the seller is under an implied obligation not to interfere with the purchaser in his use of the business premises and control of the lease assigned, for that constitutes a part of the good will, and hence, as the purchaser by reason of the assignment of the lease acquired what is known as a "tenant-right" in respect to renewal of the lease, which is the likelihood of a tenant obtaining a renewal though the lease contains no su provision, it was a breach of good faith tor the seller during the existence of the lease to obtain a new lease running to him to commence on expiration of the one assigned. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Good Will.]

5. TRUSTS 95 CONSTRUCTIVE TRUSTS-ES

TABLISHMENT.

Where the seller, who assigned the lease of the demised premises in which the business was conducted before expiration of that lease, obtained from the landlord a lease running to him which was to commence at its expiration, the will require him to hold the lease as a construcseller was guilty of such bad faith that equity tive trustee for the benefit of the purchaser who was the assignee of the first lease. 6. TRUSTS 362 - CONSTRUCTIVE TRUSTS DEFENSES.

In such case, refusal of the landlord to renew the lease to or for the benefit of the purchaser of the business, to whom the first lease was assigned, does not entitle the seller to take a renewal for himself or defeat the constructive trust, for a rule to that effect would open the door to collusion.

7. TRUSTS 347 CONSTRUCTIVE TRUST LEASES ASSIGNMENT.

chaser and the one obtained by the seller de Though both the lease assigned to the purclared that it should not be assigned or transferred by the lessee or by operation of law without written consent of the owner does not prevent the purchaser from insisting on the estab lishment of such constructive trust, he cannot by that means force the owner to accept him as a tenant and allow him to occupy the premises.

8. LANDLORD AND TENANT 290(3)—“UNLAWFUL DETAINER"-RIGHT TO MAINTAIN.

Under Thompson's Shannon's Code, § 5093, declaring that "unlawful detainer" is where the defendant enters by contract either as tenant over the possession from the landlord or the or assignee and willfully and without force holds assignee of the remainder or reversion, a landlord may maintain an action to dispossess a subtenant or assignee holding over, notwithstanding such landlord had lost control of the reversion by demising the premises to another for a term to commence at the expiration of the term of the holding over tenant.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Unlawful Detainer.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes