Chicago and Northwestern Railway Co. v. The People. policy of delivering grain exclusively, at its chosen warehouses, is a deliberate policy to be followed for a term of years, during which these contracts run. It is, however, urged very strenuously by counsel for the respondent, that a common carrier, in the absence of contract, is bound to carry and deliver only according to the custom and usage of his business; that it depends upon himself to establish such custom and usage; and that the respondent, never having held itself out as a carrier of grain in bulk, except upon the condition that it may itseli choose the consignee, this has become the custom and usage of its business, and it cannot be required to go beyond this limit. In answer to this position, the fact that the respondent has derived its life and powers from the people, through the legislature, comes in with controlling force. Admit, if the respondent were a private association, which had established a line of wagons for the purpose of carrying grain from the Wisconsin boundary to the elevator of Munn & Scott, in Chicago, and had never offered to carry or deliver it elsewhere, that it could not be compelled to depart from the custom or usage of its trade. Still the admission does not aid the respondent in this case. In the case supposed, the carrier would establish the terminal points of his route at his own discretion, and could change them as his interests might demand. He offers himself to the public only as a common carrier to that extent, and he can abandon his first line and adopt another at his own volition. If he should abandon it, and, instead of offering to carry grain only to the elevator of Munn & Scott, should offer to carry it generally to Chicago, then he would clearly be obliged to deliver it to any consignee in Chicago to whom it might be sent, and to whom it could. be delivered, the place of delivery being upon his line of carriage. In the case before us, admitting the position of counsel that a common carrier establishes his own line and terminal points, the question arises, at what time and how does a railway company estab lish them? We answer, when it accepts from the legislature the charter which gives it life, and by virtue of such acceptance. That is the point of time at which its obligations begin. It is then that it holds itself out to the world as a common carrier, whose business will begin as soon as the road is constructed upon the line which the charter has fixed. Suppose this respondent had asked from the legislature a charter authorizing it to carry grain in bulk, to be deliv ered only at the elevator of Munn & Scott, and nowhere else in the Chicago and Northwestern Railway Co. v. The People. city of Chicago. Can any one suppose such charter would have been granted? The supposition is preposterous. But, instead of a charter making a particular elevator the terminus and place of delivery, the legislature granted one which made the city of Chicago itself the terminus, and when this charter was accepted there at once arose, on the part of the respondent, the corresponding obligation to deliver grain at any point within the city of Chicago, upon its lines, with suitable accommodations for receiving it, to which such grain might be consigned. Perhaps grain in bulk was not then carried in cars, and elevators may not have been largely introduced. But the charter was granted to promote the conveniences of commerce, and it is the constant duty of the respondent to adapt its agencies to that end. When these elevators were erected in Chicago, to which the respondent's line extended, it could only carry out the obligations of its charter by receiving and delivering to each elevator whatever grain might be consigned to it, and it is idle to say such obligation can be evaded by the claim that such delivery has not been the custom or usage of respondent. It can be permitted to establish no custom inconsistent with the spirit and object of its charter. It is claimed by counsel that the charter of respondent authorizes it to make such contracts and regulations as might be necessary in the transaction of its business. But certainly we cannot suppose the legislature intended to authorize the making of such rules or contracts as would defeat the very object it had in view in granting the charter. The company can make such rules and contracts as it pleases, not inconsistent with its duties as a common carrier, but it can go no further, and any general language which its charter may contain must necessarily be construed with that limitation. In the case of The City of Chicago v. Rumpff, 45 Ill. 94, this court held a clause in the charter, giving the common council the right to control and regulate the business of slaughtering animals, did not authorize the city to create a monopoly of the business, under pretense of regulating and controlling it. It is unnecessary to speak particularly of the rule adopted by the company in reference to the transportation of grain. What we have said in regard to the contract applies equally to the rule. The principle that a railroad company can make no injurious or arbitrary discrimination between individuals, in its dealings with the public, not only commends itself to our reason and sense of justice, Chicago and Northwestern Railway Co. v. The People. but is sustained by adjudged cases. In England, a contract which admitted to the door of a station, within the yard of a railway company, a certain omnibus, and excluded another omnibus, was held void. Marriot v. L. & S. W. R. Co., 87 Eng. Com. Law, 498. In Gaston v. Bristol & Exeter Railroad Company, 95 Eng. Com. Law, 641, it was held that a contract with certain iron mongers, to carry their freight for a less price than that charged the public, was illegal, no good reason for the discrimination being shown. In Crouch v. The L. & N. W. R. Co., 78 Eng. Com. Law, 254, it was held a railway company could not make a regulation for the conveyance of goods which, in practice, affected one individual only. In Sandford v. Railroad Company, 24 Penn. 382, the court held that the power given in the charter of a railway company to regulate the transportation of the road did not give the right to grant exclusive privileges to a particular express company. The court say: "If the company possesses this power, it might build up one set of men and destroy others, advance one kind of business and break down another, and make even religion and politics the tests in the distribution of its favors. The rights of the people are not subject to any such corporate control." We refer also to Rogers' Locomotive Works v. Erie R. R. Co., 5 Green 380, and State v. Hartford & N. H. R. Co., 29 Conn. 538. It is insisted by counsel for the respondent that, even if the relators have just cause of complaint, they cannot resort to the writ of mandamus. We are of opinion, however, that they can have an adequate remedy in no other way, and that the writ will, therefore, lie, The judgment of the court below awarding a peremptory mandamus must be reversed, because it applies to the Galena division of respondent's road as well as to the Wisconsin and Milwaukee division. If it had applied only to the latter, we should have affirmed the judgment. The parties have stipulated that, in case of reversal, the case shall be remanded, with leave to the relators to traverse the return. We, therefore, make no final order, but remand the case, with leave to both parties to amend their pleadings, if desired, in view of what has been said in this opinion. Judgment reversed. Walker v. Crawford. WALKER, appellant, v. CRAWFord. (58 Ill. 444.) Promissory note-parol evidence. In an action by the payee against the maker of a promissory note, absolute on its face; held, that parol evidence was inadmissible to show that it was conditional. ACTION on a promissory note by Crawford, payee, against Walker, maker. The opinion states the point at issue. Judgment for plaintiff; defendant appealed. J. N. Barker, William Hopkins and T. J. Tuley, for appellant. Spafford, McDaid & Wilson, for appellees. BREESE, J. The only question presented by this record is as to the admissibility of the evidence offered to sustain the notice accompanying the plea of the general issue.* *This notice was as follows: "The plaintiff will take notice that the defendant, on the trial of this cause, will give in evidence and insist that, before and at the time of the making and delivering of the promissory note mentioned and set out in the plain. tiff's declaration, the schooner Australia, whereof this defendant was agent, then lying at the port of Chicago, was in the custody of the United States Marshal for the northern district of Illinois, under monition issued out of the district court of the United States for the northern district of Illinois, upon a certain libel then pending in the said court, wherein the said John A. Crawford was libellant and the said schooner Australia was defendant, and so, being in such custody, it was agreed by and between the plaintiff and defendant in this cause as follows: "That this defendant should, within thirty days from the 17th of October, 1868, pay to the said plaintiff the sum claimed by said libel, together with costs upon the same, and make and deliver unto the plaintiff the promissory note sued on in this cause, as collateral to, and security for, the fulfillment of his, the defendant's, agreement to pay the aforesaid sum of money, and, in consideration thereof, the said plaintiff agreed to dismiss the aforesaid libel and discharge the said vessel from the custody of said marshal, and that, upon such agreement of the said parties respectively, the said plaintiff did cause the said vessel to be released and discharged from the custody of said marshal and the aforesaid libel to be dismissed, and the said defendant made and delivered to the plaintiff, as security as aforesaid, the said promissory note; that afterward, and within ninety days from the said 17th day of October, A. D. 1869, this defendant tendered and offered to pay unto the said plaintiff, in lawful money, the sum of $67.07, in fulfillment and performance of this promise and agreement to pay unto the plaintiff the sum claimed in the aforesaid libel and costs thereupon; that the sum claimed by said libel, together with costs, was the sum of $67.07, and that the said plaintiff thereupon refused to accept the said sum. And this defendant here renews his aforesaid offer and tender, and now brings Listo court the aforesaid sum of $67.07.'"' Walker v. Crawford. The substance of the notice is, that the note was delivered conditionally, or as collateral security for the performance of a parol promise or agreement by appellant. Appellant, not denying or questioning the rule of law so long established, that parol testimony is inadmissible to vary the terms of a written contract, seems to intimate there is some inconsistency in the decisions of this court, at least as to the application of this rule. Under point five in his brief, he contends that the evidence excluded would have proved that the consideration of the note had wholly or in part failed, and under that head calls attention to Mager v. Hutchinson, 2 Gilm. 267. That case decides only that, when a contract is reduced to writing, the writing affords the only evidence of its terms and conditions. It cannot be contradicted or varied by the previous or contemporaneous verbal agreements of the parties. These are all regarded as merged in the written contract. The agreement sought to be established by parol in this case, which was an action of debt on a promissory note executed by one Mager and De Lassoule to the plaintiff, the latter being alone served with process, was, that at the time of the execution of the note, it was understood that De Lassoule was to be liable for its payment only in the event that the money could not be collected of Mager, averring that no effort had been made to collect it of Mager. Scammon v. Adams et al., 11 Ill. 575, was a case where it had been agreed between the indorser of the note and the indorsee, to whom the indorser was indebted, that he should refund to the indorser the surplus of the note, after paying himself. The court say that parol evidence may be introduced to show this understanding, without violating the rule that a written contract cannot be contradicted by parol proof. Penny v. Graves, 12 Ill. 287, merely reiterates the familiar doctrine that a party may show by parol a note was given without consideration, or that the consideration has wholly or in part failed, and to impeach the consideration of a note, but not to vary its terms. Ward v. Stout, 32 Ill. 399, decides a joint maker of a note may plead and prove he signed the note as surety only. The court say such proof does no violence to the rule that a written instrument cannot be varied by parol, for it does not affect the terms of the contract, but establishes a collateral fact merely, and rebuts a presump |