Kansas City, M. & O. Ry. Co. v. City of Sweetwater

• Decision Date: 02 July 1910
• Citation: 131 S.W. 251
• Parties: KANSAS CITY, M. & O. RY. CO. OF TEXAS v. CITY OF SWEETWATER.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

131 S.W. 251

KANSAS CITY, M. & O. RY. CO. OF TEXAS v. CITY OF SWEETWATER.^†

Court of Civil Appeals of Texas.

July 2, 1910.

Rehearing Denied October 22, 1910.

Appeal from District Court, Scurry County; Cullen C. Higgins, Judge.

Action by the City of Sweetwater against the Kansas City, Mexico & Orient Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

H. C. Hord, Neill & Lee, John A. Eaton, Smith, Hutcheson & Taylor, and J. McD. Trimble, for appellant. Johnson & Edwards, A. H. Kirby, R. C. Crane, Beall & Beall, W. W. Hamilton, A. C. Wilmeth, and C. P. Woodruff, for appellee.

SPEER, J.

The city of Sweetwater brought this action against the Kansas City, Mexico &amp Orient Railway Company of Texas to restrain it by injunction from removing its principal offices, machine shops, and roundhouse from the city of Sweetwater, and from a judgment in plaintiff's favor defendant has appealed.

In the view we take of the case it will be altogether unnecessary to notice in detail the many assignments of error presented by appellant. We will content ourselves with the expression of our conclusions of law upon the few issues presented. Many of appellant's assignments become immaterial in view of the restricted issues submitted in the court's charge. Since nearly every paragraph of that charge is itself made the basis of one or more assignments of error, the charge as a whole is here set out:

"Gentlemen of the Jury:

"(1) In this case you will have with you the plaintiff city's third amended original petition for a statement of its cause of action and the defendant railway company's second amended original answer for a statement of its grounds of defense.

"(2) You will not consider, however, the clauses and paragraphs in the plaintiff's third amended original petition which are embraced within the several marks of parenthesis (), as the matter embraced in parenthesis are by the court stricken out from the said pleading, and are not to be considered by you for any purpose whatever.

"(3) You are instructed, as the law of this case, that every railroad company chartered by this state, or owning or operating any line of railway in this state, shall keep and maintain permanently its general offices within this state of Texas at the place named in its charter for the locating of its general offices; and, if no certain place is named in its charter where its general offices shall be located and maintained, then said railroad company shall keep and maintain its general offices at such place within this state where it shall have contracted or agreed or shall hereafter contract or agree to locate its general offices for a valuable consideration; and if said railroad company has not contracted or agreed for a valuable consideration to maintain its general office at any certain place within this state, then such general offices shall be located and maintained at such place on its line in this state as said railroad company may designate to be its line of railway. And such railroads shall keep and maintain their machine shops and roundhouses, or either, at such place or places as they may have contracted to keep them for a valuable consideration received; and if said general offices and shops and roundhouses, or either of them, are located on the line of a railroad in a county which has aided said railroad by an issue of bonds in consideration of such location being made, then said location shall not be changed; and this shall apply as well to a railroad that may have been consolidated with another as to those which have maintained their original organization.

"(4) If you believe from a preponderance of the evidence in this case that the Panhandle & Gulf Railway Company either in its original charter and amendment thereto, designated Sweetwater, the plaintiff, as the place where its general offices were to be located, and that said Panhandle & Gulf Railway Company is now the same railway company under the name of the Kansas City, Mexico & Orient Railway Company of Texas, the defendant herein, then in paragraph 1 of your verdict you will find that the defendant designated in its charter the plaintiff city as the location of its general offices.

"(5) If you believe from a preponderance of the evidence in this case that the defendant the Kansas City, Mexico & Orient Railway Company of Texas, either under that name or under the name of the Panhandle & Gulf Railway Company, made and entered into a contract, either in writing or verbal, express or implied, with the city of Sweetwater for a valuable consideration received by said railway company, and that, based upon said consideration so received by said defendant, if any, the said defendant agreed to locate or keep and maintain their general offices, machine shops, and roundhouse or their general offices or machine shops or roundhouse, at said city of Sweetwater, you will find in the second paragraph of your verdict that the defendant, for a valuable consideration received by it, contracted with the city of Sweetwater to locate or keep and maintain its general offices, or its roundhouse, or its machine shops, or all or any part of them that you may so find from a preponderance of the evidence that it did contract to locate or keep and maintain there, if any.

"(6) Implied contracts come within the definition of the term `contract,' as the word contract is used in this charge, and if established by evidence is as binding as any kind of contract. Law and equity would imply a contract between parties when their acts and transactions reasonably show or would authorize a finding that the minds of the parties met upon an agreement for a valuable consideration.

"(7) Implied contracts, like expressed contracts, when sought to be enforced, must be enforced by and between the parties making them, and persons not parties to the contract are not authorized to enforce them by a suit or otherwise, and, if in this case you find that the defendant Railway Company by its agents did represent to any person or persons in the city of Sweetwater that it would establish its roundhouse and machine shops or either of them at Sweetwater, but that said representations were not made by the defendant through its agents to the city itself, through the agents of the said city, to wit, the mayor and the city council or some of them, then the city would have no cause of action against the defendant by reason of such representations, and if you so believe in the second paragraph of your verdict you will find that the defendant did not make contract with the plaintiff city to locate, keep, or maintain its roundhouse and machine shops in said city. But if you find from a preponderance of the evidence in this case that the defendant through its officers publicly represented to the citizens of Sweetwater that it would locate, maintain, or keep its machine shops, roundhouse, and general offices, or either of them, in the city of Sweetwater, and that the city of Sweetwater through its mayor or city council learned of such representations made by the defendant's officers, and that relying upon such representations made by the defendant's officers, if you believe that they were so made, the said city of Sweetwater, for and in consideration of the promise of the location of said general offices, machine shops, and roundhouse, or either of them, at Sweetwater, and for no other consideration, made a concession of a part of South First street and other street crossings, and such concessions were made at the instance and request of the defendant through its officers, and that the officers of the defendant knew that such concessions were made in consideration of the location of any part or all of said railway improvements, then you will find a verdict for the plaintiff, stating what part of the said improvements the defendant agreed to locate, keep, or maintain in Sweetwater.

"(8) You will not consider the question of the city of Sweetwater assuming the waterworks bond by election, as any consideration for the basis of this suit, neither will you consider the subscriptions to the barbecue or the purchase of lots of land for the Orient addition from R. A. Musgrove as a consideration for the alleged contract sued upon.

"(9) If you believe from the evidence in this case that the officers or officer of the defendant company made promises or agreements with the plaintiff to locate its machine shops and roundhouse and general offices, or either of them, at Sweetwater for and in consideration of a concession of some street crossings and several hundred feet of one South First street in said city, and that they made such contract, either express or implied, but that subsequent to the concession the city breached the...