Boyce v. Stringfellow

• Decision Date: 05 December 1908
• Citation: 114 S.W. 652
• Parties: BOYCE et al. v. STRINGFELLOW et al.
• Court: Texas Court of Appeals

114 S.W. 652

BOYCE et al. v. STRINGFELLOW et al.

Court of Civil Appeals of Texas.

December 5, 1908.

Appeal from District Court, Potter County; J. N. Browning, Judge.

Action by R. L. Stringfellow and others against W. Boyce and others for contribution. Judgment for plaintiffs, and certain defendants appeal. Reformed and affirmed.

John L. W. Veale, J. W. Crudgington, and Turner & Boyce, for appellants. H. H. Cooper and C. B. Reeder, for appellees.

CONNER, C. J.

Appellants and appellees were subscribers and obligors upon an agreement to secure the right of way, depot ground, and ground for other terminal facilities, at Amarillo, Tex., for the Choctaw, Oklahoma & Gulf Railway Company, which, in consideration thereof, agreed to extend its line of railway from Weatherford, Okl., to a connection with the Pecos & Northern Texas and the Ft. Worth & Denver City lines of railway at Amarillo. Appellees, who were plaintiffs below, expended several thousand dollars in fulfillment of the agreement, to which appellants declined to contribute, and this suit was brought to enforce contribution. The case was submitted on special issues, and upon the answers of the jury thereto judgment was rendered in favor of the plaintiffs and against each of 16 defendants for $113.64, with 6 per cent. interest thereon from August 10, 1903. The judgment also disposed of several defendants, against whom the suit had been dismissed, and of one in whose favor the jury found on the issue of whether or not he had signed the agreement. The findings of the jury are not questioned, and the appeal is submitted here upon such findings and the undisputed evidence.

Appellants, who are the defendants below against whom the judgment was rendered, first assign error to the court's action in overruling a general demurrer to the plaintiffs' petition, and in sustaining a special exception to one of the paragraphs in the answer. The petition, which is voluminous, failed to allege that the Choctaw, Oklahoma & Gulf Railway had, at and before the payments for right of way, etc., extended its line to Amarillo, and the clause of the answer to which the exception related averred specially that it had not been done within the time agreed upon. The contract, which is also lengthy, provided that upon its execution the promoter, F. I. Gowen, would, "as speedily as possible, and with all reasonable dispatch and haste, proceed to cause to be created under the laws of the state of Texas, a Texas corporation for the purpose of building, and that said corporation will build a line of railroad * * * to Amarillo * * * where said line will connect with said railroads" (the Pecos & Northern Texas and Ft. Worth & Denver City Railways). No special time is designated in the contract for either the formation of the Texas corporation or the completion of the proposed railway. All that can be said of it is that it at most required but a reasonable time for fulfillment. The pleadings and undisputed proof show that the railway was completed to its intended connection, although there appears to have been a delay, from some unexplained cause, of from 6 to 12 months at the Texas state line. Such delay, however, does not appear to be material to the rights of the parties herein. Time was not made of the essence of the contract, as in the cases of Garrison v. Cooke, 96 Tex. 228, 72 S. W. 54, 61 L. R. A. 342, 97 Am. St. Rep. 906, and Bes Line Const. Co. v. Woods, 37 Tex. Civ. App. 414, 84 S. W. 378, cited by appellants, and the contract itself contemplated that the procurement of right of way, etc., should at once begin in advance of construction, and provided the remedy for a failure in construction. We quote from the contract as follows: "Parties of the second part [parties to this suit], in consideration of such undertakings, and of the building of such road by party of the first part and his associates; and in consideration of the benefits to be derived therefrom, and the benefit to said town of Amarillo, agree that they shall and will forthwith proceed to procure and convey to such corporation, as soon as incorporated, and with all reasonable dispatch, and so as not to delay such corporation in such extension of its said line of railway, the right of way, terminal and depot grounds, of the dimensions and specifications indicated in said written proposition from said general solicitor as shown by copy thereof as hereto attached, as aforesaid. That said parties of the second part contract and agree to so procure said right of way, depot and terminal grounds, at their own expense and cost, and without any expense or cost to the party of the first part, or of such corporation to be organized by said party of the first part; and in the event parties of the second part fail to procure said right of way, such corporation after it is organized, or party of the first part in its name, shall have the right to proceed and condemn or purchase such parts of the right of way as may not be so secured by the parties of the second part, within a reasonable time, and such time as will not necessarily...