Ft. Worth & N. O. Ry. Co. v. Williams

• Decision Date: 15 December 1891
• Citation: 18 S.W. 206
• Parties: FT. WORTH & N. O. RY. CO. v. WILLIAMS.
• Court: Texas Supreme Court

18 S.W. 206

FT. WORTH & N. O. RY. CO. v. WILLIAMS.

Supreme Court of Texas.

December 15, 1891.

Commissioners' decision. Section A. Cross-appeals from Ellis county court; JOSEPH W. BROWN, Special Judge.

Suit by the Fort Worth & New Orleans Railway Company against John G. Williams upon a promissory note. Defendant brought in certain other parties, sureties on a bond given by plaintiff, and alleged in reconvention against plaintiff and said sureties for damages claimed under the bond. Judgment in favor of defendant against plaintiff, and in favor of the sureties against defendant. Plaintiff and defendant appeal. Reversed.

Groce & Templeton, for plaintiff. A. A. Kemble, for defendant.

MARR, J.

The Ft. Worth & New Orleans Railway Company instituted suit in the county court of Ellis county against John G. Williams June 28, 1887, to recover on a note for $800, payable in four installments, at stated times, of $200 each, two of which installments had been paid. The note sued on was one of many going to make up the sum of $25,000 contributed by the citizens of Waxahachie, Tex., and vicinity, in aid of the construction of the railway of the Ft. Worth & New Orleans Railway Company from Ft. Worth, Tex., to Waxahachie, and to an intersection with the Central Texas & Northwestern Railway at Waxahachie, under a written contract between the railway company, acting by its president, and such contributing citizens, acting through a committee. By this contract the railway company obligated itself "to construct, equip, operate, and maintain a standard-gauge railway from the city of Ft. Worth, Tex., in and to the city of Waxahachie, Tex., intersecting the Central Texas & Northwestern Railway at Waxahachie, and to establish and maintain in Waxahachie, Tex., a suitable freight and passenger depot," binding itself to complete certain portions of the work within specified dates, "the said railway and necessary depot to be fully completed in and to said city of Waxahachie and said intersection by June 1st, 1886." Said citizens agreed to donate $25,000 in aid of the construction of said railway; also right of way and depot grounds in Waxahachie, at one of the three places; the sum donated to be placed in notes, payable in installments as the work progressed, which notes were to be held by trustees, and collected for the benefit of the company in installments, as each specified portion of the work was completed; the last installments of each note being collectible "when said road shall have been completed to Waxahachie, and said intersection and said depot constructed." The railway company also entered into a bond, of contemporaneous date with above contract and note, in the sum of $25,000, payable to the citizens' committee, conditioned that said company should "fully and faithfully perform the matters and things by the contract above spoken of stipulated to be performed, up to and including the intersection at Waxahachie in said contract stipulated for, on or by the 1st day of August, 1886;" the sum named in which bond, in case of a breach, was to be construed, not as a penalty, but as liquidated damages. This bond, the contract above mentioned, and all notes given thereunder were, by express agreement, to be considered and construed together, as showing the contract between the parties. The defendant below pleaded the foregoing facts and contracts, and that the note sued on was executed thereunder, and brought in the sureties on said bond, and alleged as breaches of the contract: "First. That `at,' as used in said contracts in respect to the intersection mentioned, meant `in,' and that no intersection with the Central Texas & Northwestern Railway had ever been made in Waxahachie. Second. That while the plaintiff did construct its line through Waxahachie, and erect a depot in said city, and for a while used both, yet within a few months it abandoned its line in the city and its depot, as to any general public use, and has since used the line and depot of the Central Texas & Northwestern Railway Company through the city. Third. Ownership of property by the defendant in Waxahachie, and purchase of other property upon faith of the location of the depot, and depreciation in value of such property by reason of the abandonment. Fourth. In reconvention against the company and the sureties on its bond for the sums paid on the note sued on, and other damages claimed, the whole not to exceed $800.00." Exceptions were sustained to so much of defendant's answer as claimed damages for depreciation of his property by reason of the abandonments pleaded, to which ruling exceptions were reserved, but the same do not appear to be relied on in defendant's cross-appeal. The cause came on for trial before Hon. JOSEPH W. BROWN, special judge, March 14, 1890, when the following facts were proved, and found as facts by said trial judge: First. The facts hereinbefore stated. Second. That the railway company performed its contract in building and equipping its railway, including the erection and construction of its depot in the city of Waxahachie and an intersection with the Central Texas & Northwestern Railway, within the time and as stipulated in its contract, but said intersection was about 100 yards outside the corporate limits of Waxahachie, and before the said intersection was so made the defendant gave the company notice that he would consider it not a compliance with the contract. As to the meaning of the word "at" in respect to the intersection no testimony was introduced, except the written contracts. Third. That the company operated and maintained its entire railway, as well as its depot, in Waxahachie, for a few months after construction, when the Central Texas & Northwestern Railway Company constructed a line from its depot, then its terminus in Waxahachie, to an intersection with the railway of the Ft. Worth & New Orleans Railway Company, about one-half mile west of such depot of the Central Texas & Northwestern Railway, and about 200 yards west of the corporate limits of Waxahachie, since which time the two roads have been operated as a continuous line from Ft. Worth to Garrett, Tex., — the same trains using both lines and using the depot of the Central Texas & Northwestern Railway Company, which is located nearest the business portion and center of population of Waxahachie, and within the corporate limits of the city, — the line of the Central Texas & Northwestern Railway running through the city; and since this arrangement has been in force the line of the Ft. Worth & New Orleans, Railway Company through the city, and its depot, have been practically abandoned as to any general, public use of the same, the line being sometimes used as a side track, and occasionally for passing trains, while the depot has been converted into a residence for an officer of the road. From these facts the trial judge concluded, as matters of law: "First. That the intersection as originally made was in compliance with the contracts between the parties, but failure to operate the line through the city worked a forfeiture of right of recovery on the note sued on. Second. That such failure did not entitle defendant to recover back the sums paid on the note. Hence, judgment generally in favor of defendant against the plaintiff, and judgment in favor of the sureties of the railway company against the defendant, Williams." From this...