#### St. Louis-San Francisco Railway Company v. Missouri Pacific Railroad Company.

Opinion delivered April 16, 1928.

*1020 E. T. Miller, E. L. Westbrooke, Jr. and E. L. Westbrooke, for appellant.

Edward J. White, Harry L. Ponder and Thos. B. Pryor, for appellee.

Hart, C. J.,

(after stating the facts). At the outset it may be stated that appellee first instituted proceedings against appellant before the Railroad Commission of Arkansas for an order requiring appellant to permit appellee to continue the joint use of the wye tracks at Hoxie, Arkansas, under the agreement of September 27, 1895. Upon a record which contains practically the same facts as the present one, the Arkansas Railroad Commission ordered appellant to permit appellee to continue the joint use of its wye tracks at Hoxie, Arkansas. Appellant prosecuted an appeal to the Pulaski Circuit Court, and that court confirmed the order of the-Arkansas Railroad Commission, upon the evidence and pleadings before said commission. Upon the appeal to this court, it was held that the action of the Railroad Commission amounted to the exercise of judicial functions, and that it had no such power. Hence it was held thatit could not determine the rights, of the two railroads under the contract of September 27,1895, relating to the joint use and maintenance of the wye tracks at Hoxie, Arkansas. It was pointed out that the parties must enforce their rights under the contract in the courts, and that the court having proper jurisdiction of the matter could, by appropriate orders, preserve the rights of the parties until the case was finally disposed of. Hence the judgment of the circuit court was reversed, and the cause was remanded with directions to it to quash the order of the Railroad Commission. St. Louis-San Francisco Ry. Co. v. Missouri Pacific Rd. Co., 156 Ark. 259, 245 S. W. 806.

The circuit court obeyed the mandate of this court, and subsequently suit was. commenced against appellant by appellee to compel the enforcement of its rights under the contract of September 27, 1895, and the prayer of *1021the complaint is that appellant should he enjoined from interfering with the agreement existing at the time between the parties to this suit with reference to the wye tracks at Hoxie, Arkansas.

Counsel for appellant seek to reverse the decree under the general rule that one party to a continuing contract of mutual and dependent covenants, cannot require the other to perform executory stipulations while he fails or refuses to perform the contract on his part. Phillips & Colby Construction Co. v. Seymour, 91 U. S. 646, 23 L. ed. 341. Hence it is contended by counsel for appellant that the failure of appellee to maintain and keep in repair the south leg of the wye under the contract of September 27, 1895, releases appellant from compliance with the contract.

There are exceptions to this general rule, growing out of the nature of the thing to be done and the conduct of the parties. Under the terms of the contract of September 27,1895, it was. provided that, so long as the party of the first part, which was at that time the owner of the railroad now operated by appellee, shall maintain the south leg of the said wye, it shall be entitled to use both legs of the wye as well as the necessary tracks to enable it to transport engines and cars from the south to the north leg of the wye, or vice versa. The chancellor was justified in finding that appellee and its predecessor in title complied with this requirement of the contract until the first part of June, 1917. On this point a division engineer testified in positive terms that appellee and its predecessor in title had maintained the wye tracks under the contract from June, 1912, until June, 1917, and we do not think there is any satisfactory contradiction of his testimony. J. H. Quay, a section foreman' of appellant, testified that he had maintained the south leg of the wye for appellant during the years 1918 to 1920 and up to the time he was testifying. He said that he did this under instructions given him by his road-master. We think, however, the witness was mistaken on *1022this point. No doubt he did the work under instructions from his roadmaster, but he was not doing it for appellant but for the United States Government until the 28th day of February, 1920. The division engineer testified positively that, during the period of government control, the United States maintained the wye tracks. Thus it will be seen that it cannot be claimed by appellant that appellee failed to maintain the south leg of the wye until at least after the 28th day of February, 1920.

The record shows that, before this time, appellant was demanding additional compensation from appellee for the use of the wye under the contract of September 27, 1895,. and appellee was at all times denying the right of appellant in this respect. The record also shows that the managers of the respective roads recognized, in April, 1918, that there was no chance of an agreement as to the construction to be placed upon the contract under consideration. It is true this was during the period of government control, but the same persons were retained as managers of the road during this period. In September, 1920, appellant gave notice to appellee of its intention to terminate said agreement. The matter has been- continually in process of litigation of some kind during these years. Appellee contended for its rights under the contract during- all this time and wrote to appellant that it would pay the cost of maintaining the south leg of the wye. It will 'be remembered that, according to appellant’s own evidence, it had taken charge of the tracks during the year of 1918 and ever since had maintained them. This action, together with the attendant circumstances, showed a tendency on its part to refuse to allow appellee to maintain the wye during these years, and it cannot now complain that appellee has failed to comply with the terms of the contract because the failure was caused by the refusal of appellant to allow appellee to repair and maintain the south leg of the wye. Its conduct in doing so, coupled with its repeated demands *1023during these years to -appellee for an additional contract, warranted the court in finding that appellee was not guilty of such failure to perform the contract on its part as would release appellant from compliance with it.

The decree will therefore be affirmed.