Plaintiff contends that the telegram language '* * * costs of changes in tracks is accepted * * * must be construed to mean all the cost or expense in all changes in tracks, both temporary and permanent. From this construction plaintiff will have the court conclude that the defendant's telegram acceptance is an agreement by defendant to pay for the permanent relocation and construction.
An analysis of the July 19th letter, however, requires a construction contrary to plaintiff's contention. In his letter, Mr. Palmer first referred to his July 3rd letter relating to costs of the changes in the tracks. He then stated what plaintiff expected of the defendant. The first item was that defendant reimburse plaintiff for,
'* * * the cost of the temporary loop track and appurtenant facilities to be constructed pursuant to easements granted by the Blaw Knox Steel Company and your company, and when the use of these temporary loop facilities is completed, your company would be charged with the cost of removal of the temporary facilities and would be credited with the salvage or scrap value of the property removed. * * *'
The defendant contends that this paragraph in the letter made a proposal suggesting that defendant pay for the costs of the temporary loop track; that the telegram accepted that proposal; and it is, of course, agreed that defendant has paid the charges therefor. It is the third paragraph of the July 19th letter, says the plaintiff, in view of the background and the telegram, that binds the defendant to pay the cost of the construction of the permanent facilities. But as the court reads this letter, the third paragraph states, and all its purposes, is that the plaintiff was willing to postpone a determination of the costs that should be borne by Equitable,
'* * * until such time as an ultimate decision is made as to the form of the transit service in this area -- with the understanding that the postponement of the consideration of this question will be without prejudice to the rights of the Trustees * * * when the question of the allocation of these costs is ultimately taken up for consideration and determination. * * *'
The court agrees with defendant's counsel's interpretation of the construction of the letter of July 19th. All it does is suggest that the unsettled matters between the parties be deferred. Mr. Palmer is careful to say that his suggestion is '* * * without prejudice * * *' which indicates that he does not want to be precluded from raising the matter in the future. He speaks of the future time as '* * * when the question of the allocation of these costs is ultimately taken up for consideration and determination. * * *' Such language points to lack of agreement rather than assent.
In interpretation and construction of contracts, contemporaneous construction placed upon a document by the parties is always relevant and is often controlling. Again the court must agree with defendant's counsel when he says that defendant has not agreed to pay the costs of the permanent relocation by the telegram, but that if any stronger evidence is necessary, then the minutes of a Board , meeting of the plaintiff fortifies defendant's position. Defendant's exhibit 23 is an extract from the minutes of a meeting of the Board of Directors of the Pittsburgh Railways Company held on February 28, 1951. The minutes refer to a statement by Mr. Palmer, which of course plaintiffs admit, relating to the subject matter of this law suit. In part these minutes say:
'* * * He stated further that while Equitable Life Assurance Society had agreed to pay the cost of the temporary relocation of street railway facilities necessitated by the development, the Company had no assurance that Equitable would assume all or any part of the cost of the permanent relocation of street railway facilities. * * *' The minutes show that the Board authorized the expenditures necessary to cover the costs of the permanent relocation of the street railway facilities necessitated by the development of the point area and that officers were authorized and directed to take steps as may be deemed appropriate to have the costs of such relocation paid for by Equitable. The crux of the matter is that some seven months after the telegram was sent, Mr. Palmer told his board that he had no agreement with Equitable to pay for permanent facilities.
In the whole transaction and series of events, this court cannot find any evidence which binds Equitable to pay plaintiff's claim. No credibility of any witnesses is involved in this decision nor is any oral testimony to be evaluated. It seems unnecessary to cite any authorities. An analysis of the facts simply show a want of any assent by Equitable to pay any money. It offered to pay one-half and plaintiff refused that offer. Plaintiff claims an express contract exists in the evidence. I can find none.
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