Darnall v. Lyon

• Decision Date: 27 April 1893
• Citation: 22 S.W. 304
• Parties: DARNALL v. LYON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

Page 304

22 S.W. 304

DARNALL v. LYON.¹

Supreme Court of Texas.

April 27, 1893.

Action by O. T. Lyon against A. L. Darnall. Judgment for plaintiff. Defendant appealed to the court of appeals, which certified certain questions for the decision of the supreme court.

Don A. Bliss, for appellant. W. W. Wilkins, for appellee.

GAINES, J.

In this case the court of civil appeals of the second judicial district have certified to us certain questions for decision, in accordance with the provisions of section 35 of the act to organize the courts of civil appeals, approved April 13, 1892. Laws 1892, p. 31. The certificate sent to this court contains copies of the following written instruments: First, a subscription offer, signed by citizens of the city of Sherman, for the purpose of inducing the construction of a branch of the St. Louis, Arkansas & Texas Railway to that city. (This instrument nominates and appoints a committee of three citizens to make a contract on behalf of the subscribers with the railway company; second, a contract between the committee, acting on behalf of the subscribers, and the company, for the construction of the road; and, third, a contract between J. H. Britton and O. T. Lyon, on the one part, and the railroad company, on the other, by which the former, among other things, bind themselves to procure the right of way and grade the road, at their own cost and expense, from Sulphur Springs to Sherman, and the company in consideration thereof assigns to them the subscription list first mentioned. The questions submitted are: First. "Whether the subscription agreement is a separate contract, so as to admit of a separate suit thereon against each subscriber for the amount of his subscription." Second. "Whether, under the terms of the subscription agreement, the committee had authority to make the subsequent contracts, as shown in said exhibit." Third. "Whether, in a suit by Britton & Lyon, as assignees, or by the railway company, against one of the subscribers, the latter could interpose, as a defense in the nature of a failure of consideration, the noncompliance of the railway company with that part of the agreement which required it to locate and maintain within the city of Sherman passenger and freight depots, and to establish and maintain at said city a division of its road, and to build such roundhouses and machine shops as might be necessary therefor; assuming that it had complied with so much of the contract as required it to complete the construction of its road into the city of Sherman on or before the 1st of August, 1887, and to maintain, equip, and operate the same."

We are clearly of the opinion that the first question should be answered in the affirmative. Although the words, "We, the undersigned, hereby promise and agree," if unqualified, would import a joint undertaking, yet the subsequent provision in the writing, that "each subscriber" should "be liable only for the amount opposite his name," leaves no doubt that the intention was that the obligation was to be several.

The second question is more difficult. Its determination requires a construction of that part of the subscription paper which authorizes the committee to make a contract with the company, as well as of the contract which was actually made. In effect, the subscribers to the former instrument severally offer to pay to the company the amounts set opposite their respective names, "in consideration that the railway company shall, within a reasonable time after the acceptance hereof, construct, maintain, and operate a railroad from or near Mt. Pleasant, Texas, to Sherman, Texas, to connect with the railroad of said company,—it being formerly the Texas and St. Louis railroad, — and shall establish and maintain in the city of Sherman, at a convenient place, depots for freight and passengers." The committee, by the terms of the offer, are empowered "to make a suitable contract with the said railway company, and to provide therein for the manner of collecting this subscription, and all other details that may be found necessary, as to the location of depots, and whatever else that may be of interest to the town in making the same." By the contract which was actually entered into, on behalf of the subscribers, by the committee, they undertook to bind the subscribers to "procure and pay for the right of way for said company from the west line of Hopkins county to and within the limits of the city of Sherman," and to "cause to be constructed the grade of said road from the town of Sulphur Springs, in Hopkins county, to and within the corporate limits of the city of Sherman," etc. They also undertook to bind the subscribers to procure adequate depot grounds for the railroad from the line of Hopkins county to the city of Sherman, as well as suitable and adequate grounds for depot and terminal facilities in said city. In consideration of these undertakings on behalf of the subscribers by the committee, the railroad company, among other things, agreed to accept the grade, and to construct, operate, and maintain the railroad to the city of Sherman, on or before the 1st day of August, 1887. These are the prominent features of the contract, and we think they make it apparent that the committee, by executing it, exceeded the powers which the subscribers had conferred upon them. They were authorized to make, not any contract which they might think would secure the construction of the road, — not a contract to bind their constituents to do anything but to pay the amounts of their subscriptions, — but a contract that the railroad company should construct the road in consideration of the sums respectively promised by them. The contract, as actually made, attempts to bind the subscribers to an undertaking, not only to procure the right of way and depot grounds, but also to construct the grade. Until this was done the railroad company was bound to do nothing. The offer on part of the subscribers clearly shows that it was contemplated that, in order that the railroad company should avail itself of it, it should promise to construct and maintain the road, without further aid from them than the money they had promised to pay. The contract attempts to bind them to do what they did not offer to do, and what they evidently contemplated the railroad company should promise to perform. It binds the railroad company to act on condition that they should comply with stipulations which they did not authorize their committee to obligate them to perform. It is evident, therefore, that the contract contemplated by the subscribers, and that actually made, are essentially different. If it could be said that the agreement accomplished the same result as that contemplated, and imposed no additional burden upon the subscribers, it may be that the contract should be upheld as being substantially the same as that which was authorized. But such is not the fact. The two contracts — that between the railroad company and the committee, and that between the former and Britton & Lyon — indicate that these parties contemplated that Britton & Lyon should do all that the committee had promised on behalf of the subscribers, in consideration of an assignment to them of the subscription lists. But the subscribers did not empower the committee to stipulate for the promise of Britton & Lyon to do a part of the work, and that of the railroad company to do the remainder. Besides, the railroad company's promise was conditional upon the compliance of Britton & Lyon with their agreement, or upon the depot grounds and right of way being procured, and the grade completed by some other persons who might be substituted in their place. It follows, we think, that the contract actually made is not the same, in substance, as that contemplated by the parties to the subscription list, and that, therefore, the latter were not bound by it. For the reasons stated we are of opinion that the second question must be answered in the negative.

In the view we take of the case the third question becomes abstract, and need not be answered.

1. Rehearing denied. See 22 S. W. 960.

STAYTON, C. J., (concurring in result.)

There can be no doubt of the intention of the legislature to confer upon the supreme court jurisdiction of a question of law found in a case appealed to a court of civil appeals, although that court had made no decision of the question or cause, interlocutory or final in character, nor can there be doubt of the intent to make the decision of the supreme court on the question certified binding upon the court of civil appeals. In the matter before this court the court of civil appeals has made no decision of the cause, nor of the questions certified, and the question arises whether the legislature had power to confer such jurisdiction on this court. If it had, this court must exercise it; but, if it had not, the exercise of such power is usurpation. The constitution declares that "said court of civil appeals shall have appellate jurisdiction coextensive with the limits of their respective districts, which shall extend to all civil cases of which district courts or county courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law." If, under this clause of the constitution, the legislature had not restricted the jurisdiction of these courts, they would have had appellate jurisdiction of every civil cause tried in a district or county court in the exercise of original or appellate jurisdiction, simply because it is conferred by the constitution. That jurisdiction has been somewhat restricted by the legislature under the power conferred by the constitution, but that the court of civil appeals has jurisdiction of the cause in which the questions certified are found is conceded. What is the character of that jurisdiction? To this it must be answered that it is appellate and exclusive so long as the cause remains undecided in that ...