Wooters v. Int'l&g. N. R. R. Co.

• Decision Date: 11 February 1881
• Docket Number: Case No. 1278.
• Court: Texas Supreme Court
• Parties: J. C. WOOTERS v. INTERNATIONAL & G. N. R. R. Co.

54 Tex. 294

J. C. WOOTERS

v.INTERNATIONAL & G. N. R. R. Co.

Case No. 1278.

Supreme Court of Texas.

Feb. 11, 1881.

APPEAL from Houston. Tried below before the Hon. W. D. Wood.

Appellee brought suit in the district court of Houston county August 24, 1875, against appellant for $1,000, on an alleged voluntary subscription agreement of appellant to pay the H. & G. N. R. R. Co. (afterwards consolidated with the Int. R. R. Co.) that amount of money, on condition that the company would run its road through Houston county and erect a depot as near the court house at Crocket as practicable, and within one mile. Appellant pleaded a general denial, and also specially set up failure of consideration, etc.

The court sustained appellee's demurrer and exceptions to the answer. Verdict and judgment for appellee for $1,546.66, principal and interest.

The written agreement states the consideration thus: “For and in consideration of the enhanced value to be given and which is contemplated to arise to our lands and other property by the location and speedy construction of the H. & G. N. R. R., and for the further consideration of one dollar to each of us in hand paid.” The condition is, “if the aforesaid railroad company shall on or before the first day of May, 1873, build its railway and run its cars to the north or northeastern line of Houston county, and establish and have a depot as near the court house as practicable, and not to be more than one mile from said court house.”

The agreement contained a proviso to the effect, that if Houston county should issue bonds to the railroad company in the sum of $25,000, payable in twenty years, the agreement should be regarded as cancelled and discharged. Objection was made to reading the agreement, on the ground that the petition failed to charge that the contingency qualifying defendant's liability had never occurred.

The answer ruled out on demurrer and exceptions, besides a general denial, set up, in avoidance of the subscription, substantially the following facts: That before the agreement was signed the company had run lines of survey locating its line and a depot at a distance of a mile or more from the court house, and avowed its intention to establish a depot at such distance from Crocket, with the fraudulent intent and purpose to induce the citizens of that town to pay it money and property to have the road constructed and a depot established nearer the court house; that the subscriptions by defendant and others were made with the view of having a depot located at the nearest practicable point to the court house, which is in the center of the public square, in order to preserve the town and keep its business on and near the public square, as was well known to said company; that defendant and other subscribers owned property on the public square, and it was considered by them that the location of the depot near the court house would enhance the value of their property, as well as prove of great convenience to the public; that before and at the time defendant subscribed the agreement, the president and chief engineer of the H. & G. N. R. R. Co., and other officers and agents of the company, stated to defendant that the depot would be located at a point about two hundred yards from the court house, and that said point was a practicable one for the depot, which representations were fraudulently made to induce said subscription; that the company fraudulently induced defendant and others to subscribe the agreement on the avowed intention of the company and its authorized officers and agents, who were then engaged in the construction of the road and soliciting said subscriptions, that the company would establish the depot at or about said point; that the consideration and inducement to the citizens to subscribe to the agreement was, that the depot should be located at or about said point as the nearest practicable point to the court house; that instead of locating the depot at said point which is convenient to the business portions of the town, convenient of access, etc., the company fraudulently and against the protests of said subscribers, including defendant, located the depot at a greater distance, to wit, one thousand yards from the court house, and at a point inconvenient of access, there being a branch and ravine between the depot and the public square; that the company, after having secured subscriptions to the agreement, including defendant's, on the faith of the representations that the depot would be established at the point mentioned, fraudulently purchased land where the depot was and is located, and laid off lots, etc., and attempted to build up a new town called “New Crocket;” that the company by its president and chief engineer and other officers and agents,...