Page:Federal Reporter, 1st Series, Volume 3.djvu/740

 •W. tr. TBLEGRAPH ÇO. V. U._ P. RT. 00. 733 �cemed, the said road or roads of fee Union Pacifie Eailway Company,. Eastern Division, shall at the time be in process of construction towards Santa Fe, or Denver, or both; and ail such business shall be transmitted f ree of charge over ail other lines owned or controUed, or that may hereafter be owned or controlled, by the said talegraph company within the United States, to an amount not exceeding the rate of $4,000 per anuum ; and for any excess above such rate the telegraph company will deduct and rebate one-half the regular tariff charges; settlements and payments for such excess to be made yearly." �There arises on the face of this clause of the contract an ambiguity as to the precise meaning of the worda "execu- tive officers." It is claiuied by complainants that "execu- tive officera" here referred to were not the directors, but were the president, superintendent, general manager, and other officers of that class. It must be confessed that there ia nothing in the context, and nothing in the definition of the word "executive," untiï application is made to the facts which conoeru the nature and functions of the varions officers of the company, to determine whether the directors other than the president were included under the phrase "executive offi- cers." If there has been a praetical construction of that agreement by the acts of the parties during the 12 yeara that the contract has been in existence, further proof may show what that construction has been, and give light to tha court in deciding the question. While I am strongly in f avor of the assertion of the general proposition that where onj9 of a body of individuals jointly interested in- a matter consents to take a special advantage to himself, and reçoives a valuable consideration for using his efforts to procure an agreement of the whole for the benefit of a third party, if such receipt of special advantages, whether of money or of property, be kept secret from his copartners or joint stock- holders, or those interested with him in the same matter, and they act upon the belief that he is governed by no other inter- est than that which ia common to them ail, the contract so obtained on the part of the third person ia flagitioua, and ����