Garrison v. Cooke

• Decision Date: 16 February 1903
• Citation: 72 S.W. 54
• Parties: GARRISON v. COOKE.
• Court: Texas Supreme Court

Page 54

72 S.W. 54

GARRISON v. COOKE.

Supreme Court of Texas.

February 16, 1903.

Certified questions from court of civil appeals of First supreme judicial district.

Action by T. S. Garrison against J. W. Cooke. From a judgment in favor of defendant, plaintiff appeals. On certified questions from the court of civil appeals.

Blount & Garrison and Claude Pollard, for appellant. J. G. Woolworth, J. H. Long, H. N. Nelson, W. R. Anderson, and Spencer & Scott, for appellee.

GAINES, C. J.

The following questions have been certified for our determination:

"In this cause now pending before this court on motion for rehearing we are advised that a number of other claims of a like nature, growing out of the same transaction, are dependent upon the result of this case, and for that reason, and because this court is not unanimous in the conclusion already reached to affirm the judgment, and are in doubt as to the correctness of our judgment, we certify for your decision the questions hereafter set out. The facts, as disclosed by the record, are as follows: Some time in the spring of 1898 T. S. Garrison, the appellant, induced J. W. Cooke and other citizens of Carthage, Texas, to execute and deliver to him the following instruments, with the amount for which each was to be bound set opposite the respective signatures: `The State of Texas, Panola County. Know all men by these presents, that we, and each of us, whose names are subscribed below, for and in consideration of T. S. Garrison constructing, equipping, and operating a line of railroad from Timpson, Shelby county, Texas, to Carthage, Panola county, Texas, and the running of daily trains between said points for the accommodation of freight and passenger traffic on or before the 1st day of October, 1898, agree to pay the amounts set opposite our respective names to such persons as said T. S. Garrison designates; said amounts to be paid when the road is completed and daily trains are running over same to the town of Carthage. J. W. Cooke, $350.00.' The time of completion to Carthage was subsequently extended by agreement of parties to November 1, 1898. The appellant proceeded with the construction of the proposed road, which was known as the `Marshall, Timpson & Sabine Pass Railroad,' and by about the first of the year 1899 had completed it to within about half a mile of Carthage. Appellant then sold the road to the owners of a competitive railroad, the Texas, Sabine Valley & Northwestern Railroad; and these parties, by March 1, 1899, but not before, completed the proposed road to Carthage, and had daily trains running thereon as stipulated in the contract. When the road was sold to them by appellant, it was stipulated by him that it should be completed to Carthage as per contract, though it would have suited the purchasers better to construct it by a different route to another point. On the completion of the line to Carthage, appellant demanded the subscription, but appellee refused to pay, whereupon this suit was brought. Appellee defended —First, upon the ground that time was of the essence of the contract, and that, as the road was not completed by November 1st, his liability for the subscription did not attach; and, second, that, as the road was not built to Carthage by appellant, but was sold out to and completed by parties who already had a railroad to Carthage, he was discharged from liability. Parol evidence was admitted to the effect that the subscribers had contracted that the road should be in operation to Carthage by October or November 1st, because they expected it, by competition with the other railroad, to affect the rate of freight on cotton to their advantage. A trial by jury resulted in a judgment for appellee.

"Questions: (1) Does the subscription contract show upon its face that time was of the essence of the contract? (2) Did the trial court err in hearing proof as to the situation of the parties, and the fact that the subscribers expected to derive benefit from the construction of the road by the date named in the way of reduction in freight rates on cotton? (3) Would the fact that appellant did not complete the road himself, but sold out to a rival road, which completed it, constitute a defense to the action? (4) If parol evidence as to the situation of the subscriber at the date of the contract is admissible in explanation of its meaning and in aid of its construction, must such evidence be confined to the subscriber in question, or may such inquiry include his co-subscribers who signed contemporaneously with him? (5) Do the facts show that time was of the essence of the contract?"

"It is a familiar principle that in all cases where it is sought to enforce contracts consisting of...