City of Galveston v. Galveston City R. R. Co.
| Decision Date | 01 January 1877 |
| Citation | 46 Tex. 435 |
| Parties | THE CITY OF GALVESTON v. THE GALVESTON CITY R. R. CO. |
| Court | Texas Supreme Court |
APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.
The city of Galveston, on the 24th day of May, 1866, made a written contract with certain parties named therein and their successors, under which the Galveston City Railroad Company was organized and operated. An act of the Legislature was passed, approved October 8, 1866, by which the company was duly incorporated, in accordance with the provisions of said contract. Said act of incorporation, among other things, provided that “said company shall construct, equip, and run said railroad upon the streets within the limits of said city, under such conditions and ordinances as the mayor and aldermen of said city may provide and impose.”
Articles XIII and XV were the basis of the action. Article XIII is as follows:
Article XV is in the following language: “Said party (meaning the company) shall construct and keep in good repair all cross-culverts, whenever the same may be required under their rail tracks--said culverts to extend across the street from sidewalk to sidewalk; and whenever said party shall neglect to construct and keep in order said culverts, the city shall have the right to cause said culverts to be made or repaired at the expense of said party; and in the event of their refusal to pay the same, the amount shall be recoverable before any court of competent jurisdiction, for the benefit of the city.”
The company constructed its tracks along several streets, indicated in the agreement, and had since used and operated the same for the purposes of its organization.
On the 8th of November, 1873, the city of Galveston filed this suit against the company, alleging breach of contract on the part of said company, in having neglected to comply with the terms and conditions of said XIII and XV articles of said contract. The special breaches of contract set up in the petition were, that the defendant failed and refused to fill up to the proper grade certain portions of its road-bed, and to construct certain culverts beneath the same, the necessity for which was great; that the city, by reason of such default, was compelled to and did fill up said road-bed and construct said culverts, at the cost of $5,894.85, for which a recovery was sought.
The defendant pleaded, 1st, general denial; 2d, no liability for the amount claimed; 3d, no notification or demand before suit; 4th, no liability under the contract for the work alleged to have been done; and 5th, release by operation of subsequent ordinance or contract on the part of the city.
By agreement of counsel, the questions of labor and material and the cost thereof were specially reserved for reference to an auditor or master, in the event the law of the case should go against the defendant.
A jury was waived, and the issues of law and fact submitted to the court, which gave judgment for the defendant, from which judgment the plaintiff appealed.
The question presented by the record was, whether the City Railroad Company is liable to the City of Galveston, under article XIII and XV of their contract, for the expense incurred by the city in filling up certain portions of the roadbed of the company, and constructing certain culverts beneath the same. This statement is adopted from the brief of appellee, and is full.
Walter L. Mann, for appellant.
Ballinger, Jack & Mott, for appellee.
The only questions which we are called upon to decide in this case, by the record now before us, as counsel for both parties agree, are, whether the City Railroad Company is liable to the city of Galveston for the expenses incurred by the city in filling up certain portions of the road-bed of said railroad company, and constructing culverts beneath the same, under articles XIII and XV of the contract of May 24, 1866, under which said Galveston City Railroad Company was organized, and its road constructed and operated.
Appellant insists, that by art. XIII of...
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