City of Tyler v. St. Louis Southwestern Ry. Co. of Texas

• Decision Date: 15 February 1906
• Citation: 91 S.W. 1
• Parties: CITY OF TYLER et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.
• Court: Texas Supreme Court

Page 1

91 S.W. 1

CITY OF TYLER et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.

Supreme Court of Texas.

February 15, 1906.

Error from Court of Civil Appeals of First Supreme Judicial District.

Action by the city of Tyler and others against the St. Louis Southwestern Railway Company of Texas and others. There was a judgment of the Court of Civil Appeals affirming a judgment for defendants (87 S. W. 238), and plaintiffs bring error. Reversed.

Johnson & Edwards, Horace Chilton and Ben B. Cain, for plaintiffs in error. E. B. Perkins, Finley, Knight & Harris, Head, Dillard & Head, Glass, Estes & King, Daniel Upthegrove and Marsh & McIlwaine, for defendants in error.

BROWN, J.

The city of Tyler, a municipal corporation organized under the laws of Texas, Johanah Pabst, and W. H. and Sue Cousins instituted this suit in the district court of Smith county against the St. Louis Southwestern Railway Company of Texas, the Tyler & Southeastern Railway Company, and a number of individuals not necessary to mention here, to establish a contract alleged to have been made with the St. Louis Southwestern Railway Company of Texas for the location and maintenance and perpetual operation of its general offices and main machine shops and roundhouses in the said city of Tyler. Plaintiffs sought and obtained an injunction from the said court restraining the St. Louis Southwestern Railway Company of Texas from removing its general offices, machine shops, and roundhouses from the said city of Tyler; and said petition sought a specific performance of said contract, compelling the railway company to continue the maintenance in the said city of its said general offices, machine shops, and roundhouses. The allegations of the petition need not be more specifically set out; they were sufficient to admit evidence to sustain the verdict of the jury and the conclusions of fact filed by the judge. The defendants answered by general demurrer, and by special exceptions to the petition and to the merits opposed a general denial and a special answer, in which it was alleged that the St. Louis Southwestern Railway Company of Texas acquired the said property by judicial sale free from all contracts and obligations of its predecessors as the owners thereof. And specifically denying the alleged contract the answer averred that, if any such contract was made as claimed in the petition, then it was verbal, and no memorandum in writing was made and signed by the said railway company, and that the said contract was incapable of being performed within one year from the date of the making thereof, wherefore it was void under the statute of frauds. It was also alleged by the railway company that it would be against public policy to enforce such a contract against it. We have only stated such parts of the pleadings as we deem necessary for the decision of the case under the view that we have taken of it.

From the special verdict, the additional findings of fact by the court, and the undisputed evidence, we make the following statement of the facts necessary to be considered in determining the issues upon which we think the case should be decided. In 1879 the city of Tyler was, and since that time has continued to be, a municipal corporation, organized under the general laws of the state of Texas, and each of the railroad companies hereinafter named was organized under the laws of this state at the several dates mentioned. On the 9th day of May, 1880, the Texas & St. Louis Railway Company (the first company), being engaged in constructing a line of railroad in Texas to run through the city of Tyler, entered into an agreement in writing with the city of Tyler and its citizens to the effect that the said railroad company would construct and operate its railroad through the said city and would establish and perpetually maintain in the said city its general offices and its main machine shops and roundhouses, in consideration whereof the citizens of the said city and the city of Tyler agreed to furnish the right of way through the corporate limits of the city, the citizens to pay in cash $4,000 and to furnish eight acres of land, to be selected by the said railroad company, upon which the machine shops and roundhouses might be constructed. The city of Tyler and the citizens complied with the contract; the city giving the right of way over one of its streets and the citizens paying the $4,000. Johanah Pabst, a feme sole, and W. H. Cousins and his wife, Sue Cousins, conveyed to the railroad company eight acres of land, all of which were accepted by the said railroad company. The railroad company constructed its road upon the street designated by the city, and its general offices, machine shops, and roundhouses were located in the said city in accordance with the said contract, and maintained the same until its property was sold. In 1886, in a suit pending in the United States Circuit Court against the Texas & St. Louis Railway Company, its property was placed in the hands of a receiver, and subsequently, by order of the court in that case, the said railroad and all property belonging to it were sold and purchased by Williams Mertens and others, styled "bondholders' committee," for the purpose of organizing another railroad company. Soon thereafter the Texas & Arkansas Railway Company of Texas (the second company) was organized under the general laws of the state of Texas. In the charter Texarkana was designated as the place at which the general offices of the company should be located. All of the property of the Texas & St. Louis Railway Company was then conveyed to the Texas & Arkansas Railway Company of Texas, which received the same and entered into possession thereof, operated and used the railroad tracks, the machine shops, and roundhouses situated in the said city of Tyler, but it maintained its general offices at the city of Texarkana during the time it owned the said property. The city of Tyler instituted a suit against the second company in the district court of Smith county and procured an injunction prohibiting the removal of the general office, machine shops, and roundhouses of the said road from the city of Tyler. This suit remained on the docket of the court during the time the second company owned and operated the said railroad. In the year 1889, in a suit instituted in the Circuit Court of the United States against the Texas & Arkansas Railway Company of Texas, all of the property of the said company was placed in the hands of a receiver, and, by order of the said court, all of the property of the said company was on the 23d day of October, 1890, sold by the receiver and purchased by Louis Fitzgerald, purchasing trustee. On the 12th day of January, 1891, the St. Louis Southwestern Railway Company filed its charter with the Secretary of State, and thereafter all of the property of the second company was conveyed to this, the third company, under which conveyance it received the railroad running through the city of Tyler, the machine shops, roundhouses, and the eight acres of land which had been conveyed originally to the first company, and the said third company took charge of and operated the said railroad, machine shops, and roundhouses from the time of the conveyance to the present time. On the 10th day of February, 1891, J. A. Edson, the vice president and general manager of the St. Louis Southwestern Railway Company, entered into a contract with the city of Tyler and with the citizens of the said city, with Johanah Pabst, and with W. H. Cousins and his wife, whereby the said Edson, on behalf of the third company, verbally agreed that the said company should carry out and perform all of the provisions and stipulations of the contract of 1880, made with the first company, in consideration of which the city of Tyler and the citizens of the said city agreed that the said city would close up a certain street and turn the same over to the said railroad company for its exclusive use, and that the citizens of Tyler would upon the terms agreed upon secure for the said railroad company 20 acres of land in addition to the 8 acres before conveyed. In pursuance of that contract the city of Tyler did, within one year from the date of the said contract, dismiss the suits pending against the Texas & Arkansas Railway Company, and did close up the street agreed upon, and surrendered the same to the said railroad company for its exclusive use, and the citizens of Tyler did, by contribution of funds and the action of certain persons representing them as trustees, secure the 20 acres of land in addition to the 8 acres before conveyed, and did convey the said land to the said railroad company. The said railroad company took possession of the said street and the 20 acres of land, and continued to occupy and use the same from that time to the institution of this suit, and the said railroad company did in accordance with the said agreement remove the general offices of the railroad company and establish the same at the city of Tyler in accordance with the provisions of the charter of the said railroad company, and has since maintained the same at Tyler; but on or about the 9th day of April, 1902, the third company gave notice of an intention to amend its charter so as to remove its general office from Tyler to Texarkana. The case was submitted to a jury on special issues, which were answered, after which the trial judge filed additional conclusions of fact, and entered judgment for the defendants, which was affirmed by the Court of Civil Appeals.

A number of interesting questions have been presented and ably discussed by counsel on both sides which it will not be necessary for us to pass upon, as we are of opinion that the rights of the parties depend upon the validity of the verbal contract made between the St. Louis Southwestern Railway Company of Texas and the plaintiffs in error in 1891. Does that contract come within the terms of Rev. St. 1895, ...