Dermott Townsite Co. v. Wooten

• Decision Date: 24 February 1917
• Docket Number: (No. 8529.)
• Citation: 193 S.W. 214
• Parties: DERMOTT TOWNSITE CO. et al. v. WOOTEN et al.
• Court: Texas Court of Appeals

193 S.W. 214

DERMOTT TOWNSITE CO. et al. v. WOOTEN et al.

(No. 8529.)

Court of Civil Appeals of Texas. Ft. Worth.

February 24, 1917.

Rehearing Denied March 24, 1917.

Appeal from District Court, Mitchell County; W. W. Beall, Judge.

Action by H. O. Wooten and others against the Dermott Townsite Company and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Shepherd & Sandusky, of Colorado, Tex., for appellants. Yonge & Yonge, of Snyder, and Royall G. Smith and T. R. Smith, both of Colorado, Tex., for appellees.

BUCK, J.

This is the second appeal of this case, our opinion on the first appeal being found in 178 S. W. 598, to which we refer for a full statement of the pleadings. In that opinion, we held that the general demurrer to plaintiffs' petition should not have been sustained, and the judgment of the court below was reversed and the cause remanded. Upon the second trial, the cause was submitted to the jury on special issues, and plaintiffs recovered judgment upon the bond given, and defendants appeal.

In response to the issues submitted the jury found: (1) That the error as to the number of the section in which the 150 acres to be conveyed was located was one of mutual mistake, not due to the negligence of either party, and that the section number intended was 399, instead of 398, as given in the bond; (2) that defendants L. E. Lasseter and R. H. Looney were not partners in the Dermott Townsite enterprise at the time the bond in question was executed; (3) that plaintiffs did not contract for the 150 acres for the purpose of platting a townsite. Inasmuch as it appeared both by the pleadings and evidence that defendants were unable to comply with their contract to convey title to the 150 acres to plaintiffs, because they did not have such title at the time of the suit, plaintiffs, in a second count, prayed for recovery on the $2,000 bond given, and a judgment was given by the court for plaintiff Wooten, for the use and benefit of his co-plaintiff, the Roscoe, Snyder & Pacific Railway Company, for a reformation of the contract and bond as prayed for, and judgment in their favor against defendants Lasseter and Looney as sureties for the full sum of $2,000, with interest from November 16, 1912, and a judgment in favor of Looney against his codefendant Lasseter for the same amount, with costs of suit.

While appellants have presented in their brief five assignments, the main and practically the only question involved is the right of a railway corporation to enforce an executory contract for the conveyance to it of real estate under the circumstances shown in this case.

It will be remembered, as is more fully shown in the opinion on the former appeal, that plaintiffs alleged their full compliance with the terms of their contract to construct sidings and such switches as should be necessary to transact its business, and a depot building on the railway company's line adjacent to the townsite of Dermott. The evidence fully sustains this allegation of compliance with the terms of said contract on the part of the railway company. Therefore it follows that the railway company was entitled to a judgment of specific performance, and, in case such judgment should be ineffective because of failure of title to the land involved, to a recovery on the bond given it to guarantee the performance of defendants' agreement to convey, unless the railway company is so restricted by its charter provisions or by statutory inhibition that it cannot acquire and hold title to lands under the circumstances stated. If so prevented by statute or charter provisions then the railway company is in no position to insist upon a recovery on the bond, for if the contract was void, the bond executed to secure it was void also. Edwards County v. Jennings et al., 89 Tex. 618, 35 S. W. 1053. Article 6537, Vernon's Sayles' Texas Civil Statutes, provides that a railroad company shall have the right to purchase, hold, and use such real estate as may be necessary for the construction and use of its railway, etc., and to convey the same when no longer required for such use. Article 6538 provides that such railway corporations shall have the right to take, hold, and use such voluntary grants of real estate as shall be made to it "in aid of the construction and use of its railway," etc. If the construction can reasonably be given to this contract on the part of defendants to convey, and on the part of plaintiffs to receive, the land in controversy, that such conveyance or donation was "in aid of the construction and use" of plaintiff railway, it would then become immaterial as to whether said railway company purposed at the time of said contract to use the land mentioned for townsite purposes,...