Oct. 96.] A., T. & S. F. R. R. Co. v. C. & W. I. R. R. Co. 633

March, 1887, two preliminary contracts were made, each referring to the other, and together constituting a single transaction. One was an agreement for a deed of certain lands immediately east of the Western Indiana railroad, on which the Atchison company might lay its tracks connecting its railroad with the station property of the Western Indiana company. The other was a lease from the Western Indiana to the Atchison of passenger station facilities at Polk street for a period of 999 years, for which the Atchison company was to pay $100,000 annually, and also pay its share of the cost of maintaining such station and the tracks north of Forty-ninth street connecting with it, including, also, insurance, taxes, and such improvements as might, from time to time, become necessary. The agreement for a deed was undated, although it was executed tentatively in March. By its terms it was not to be effective until the lease should be executed and confirmed by the stockholders of the Western Indiana. The real estate embraced in this agreement was divided into two tracts, described as first and second. The lease was executed May 21, 1887, by the respective parties, and was shortly thereafter confirmed by the stockholders of the Western Indiana. Thereupon both contract and lease became effective as parts of one transaction. The contract provided that the possession of both properties should be given to the Atchison company immediately upon the execution and delivery of the agreement and the lease, and the confirmation thereof by the stockholders of the Western Indiana company. This agreement between the parties thereto is as follows:

"This agreement, made and entered into this......day of............, A. D. 1887, by and between the Chicago and Western Indiana Railroad Company, a corporation of the State of Illinois, party of the first part, and the Atchison, Topeka and Santa Fe Railroad Company in Chicago, a corporation of the same State, party of the second part:

"Witnesseth: That as a part and parcel of a certain contract of lease about to be completed between the parties thereto and with other parties, and only on condition that the same is finally completed, executed and confirmed by the stockholders of the party of the first part thereto, the party of the first part agrees to sell to the party of the second part the following described real estate, to-wit:

“First—All that property owned by the party of the first part lying south and east of a line drawn parallel with and distant four (4) feet from the outside rail of the most southeasterly railroad track of the party of the first part, north of the St. Charles Air Line railway, east of Clark street and south of a line 200.12 feet north from and parallel with the north line of Fifteenth street, being parts of blocks twenty-four (24), twenty-five (25), thirty-three (33), and of lots one (1) and three (3), of block thirty-two (32), in the assessor's second division of the east fractional north-east quarter of section twenty-one (21), township thirty-nine (39), north, range fourteen, east of the third principal meridian, and parts of lots twenty-nine (29), thirty (30), thirty-five (35) and thirty-six (36), and all of lots thirty-seven (37), thirty-eight (38), thirty-nine (39) and forty (40), in Wilder's north addition to Chicago, in the county of Cook and State of Illinois.

"Second-All of block six (6), in canal trustees' new subdivision of blocks in the east fractional south-east quarter of section twenty-one (21), township thirty-nine (39), north, range fourteen (14), east of the third principal meridian, except a part of the north-west corner thereof to be reserved for the use of the first party in making the contemplated new alignment and completing its system of four tracks, which said reserved strip is described as follows: Commencing at the north-west corner of block six (6) aforesaid, running thence easterly along Sixteenth street fifty (50) feet, thence by a straight line southwesterly to the south-west corner of lot three (3) of said

block, and thence along the west line of lots three (3), two (2) and one (1) in said block, to the place of beginning.

"The party of the second part agreeing to pay to the party of the first part for the property first above described the sum of two dollars per square foot, to be paid as follows:

"Whereas, in and by the said lease above referred to, the party of the first part is about to agree with the party of the second part to complete the alignment of its railroad tracks from Forty-ninth street northerly to the St. Charles Air Line railroad, and also to construct a viaduct on Eighteenth street and to complete four main tracks between Clark street and Forty-ninth street, as will more fully appear by the said contract of lease about to be executed between the parties hereto and the Chicago, Santa Fe and California Railroad Company and Anthony J. Thomas and Charles Edward Tracey, trustees, the same being the lease herein before referred to:

"Now, therefore, it is agreed that the purchase price of the property first above described shall become due and payable upon completion by the party of the first part of its alignment as aforesaid, and of its four main tracks as aforesaid, as far north as Sixteenth street, and the completion and construction of the said viaduct. It is further agreed, that for the property secondly above mentioned the party of the second part shall pay a sum per square foot therefor to be agreed upon between the parties thereto, such agreement to be endorsed in writing upon this contract; or in case the parties hereto shall be unable to agree, then the reasonable market value of said property shall be fixed by an arbitrator to be agreed upon and named by the parties hereto, but if the parties hereto shall be unable to agree upon a single arbitrator then each of them will name one arbitrator, and the price fixed by the two arbitrators thus selected shall be the price to be paid by the party of the second part to the party of the first part for said real estate; and if the two

arbitrators thus chosen shall not be able to agree, then they shall jointly select an umpire, whose finding and decision shall be final, such agreement to be made or the amount so determined and endorsed before the final completion and delivery of the lease aforesaid. Possession of both of the properties above described shall be given by the party of the first part to the party of the second part upon the said agreement or lease above referred to being confirmed by the stockholders of the party of the first part and fully executed and delivered. And the purchase money of the said property secondly above described shall be paid by the party of the second part to the party of the first part upon the party of the first part procuring releases of two mortgages, incumbrances created by it on said property secondly described, one dated November 1, 1879, and the other December 1, 1882, both to Anthony J. Thomas and Charles Edward Tracey, as trustees, and the execution and tender to the party of the second part of a deed containing covenants of warranty therefor. And it is further agreed, that upon the performance of the stipulations of this agreement as to the time when the purchase price of the property first above described shall become due, and a release of the said two mortgages, liens placed on the said property by the party of the first part, and the tender to the party of the second part of a deed with covenants of warranty conveying said property first above described to the party of the second part, the party of the second part shall at once pay the purchase price therefor, it being understood that the party of the second part is satisfied to receive the title now existing in the party of the first part to said several tracts of land, together with releases of all mortgages placed thereon by the party of the first part, and to rely for its title to said property upon covenants of warranty to be contained in such deeds. It is further agreed that prompt payment of the purchase moneys at the times herein limited is of

the essence of this contract as to the sale of said lands, and if the purchase price named for either or both of said properties shall not be promptly paid at the times herein limited then this contract to convey any or either of said lands shall be void, and the party of the first part may at any time thereafter declare the said agreement to convey at an end, and by entry or suit, or either, at its option, recover possession of, and its estate and right and possession of, said land, as if this contract had never existed.

"And whereas, the party of the second part has purchased or agreed to purchase, or is about to have purchased for its use, certain lands or lots, to-wit: lot eleven (11), in block nine (9), and lot one (1), block twenty-one (21), both in the canal trustees' new subdivision above mentioned, which face upon Eighteenth street and other property in the vicinity:

"Now it is agreed, that in order to facilitate the construction of the viaduct above referred to in Eighteenth street, the second party shall discharge and release and hold the party of the first part free and clear of all claims for damages, and for all damages to the said lots last above described, accruing thereto by reason of the construction of said viaduct in Eighteenth street, and that it will also release the first party thereto from all damages which may result to any property which has been or may be purchased by the second party, or for its use, which will be injuriously affected by the construction of said viaduct.

"In witness whereof," etc.

The lease from appellee to appellant contained the following provision: "The lessor having agreed to allow and furnish to the lessee, for the benefit of the third party, the use of that portion of its line of road extending from Forty-ninth street, in the town of Lake, Cook county, to and into the city of Chicago, together with certain terminal accommodations in said city of Chicago, and the use of the station and other property, the said