Gulf, C. & S. F. Ry. Co. v. Newell

• Decision Date: 19 March 1889
• Citation: 11 S.W. 342
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> NEWELL.
• Court: Texas Supreme Court

11 S.W. 342

GULF, C. & S. F. RY. CO.v.

NEWELL.

Supreme Court of Texas.

March 19, 1889.

Appeal from district court, Montgomery county.

Action by James M. Newell against the Gulf, Colorado & Santa Fe Railroad Company. Judgment for plaintiff, and defendant appeals.

J. W. Terry, for appellant. W. P. McComb, for appellee.

STAYTON, C. J.

Appellee brought this action against the Gulf, Colorado & Santa Fe Railway Company to recover damages for the breach of a contract which he alleges the Central & Montgomery Railway Company made with him and other residents of the town of Montgomery in the year 1879. He alleged that this contract was evidenced by a subscription list, the caption of which provided that, in consideration the subscribers would pay the sums each subscribed, the Central & Montgomery Railway Company would establish, build, and maintain permanently its depot at some point within 1,000 yards of the court-house, in the town of Montgomery, and that he subscribed and paid to the railway company the sum of $1,000. He further alleged that, in compliance with this contract, the Central & Montgomery Railway Company, in the year 1879, did construct and maintain its depot within the named distance from the court-house, where it remained until about September, 1885, but that about the month of June, 1882, the Central & Montgomery Railway Company ceased to control and operate its railway, and to exercise its rights and franchises, which passed into the possession and control of appellant under some contract, pretended purchase, or by usurpation, and that since that date appellant has continuously managed and controlled the railroad property and franchises of the other railway company. He further alleged that about the month of September, 1885, appellant, in violation of the contract between himself and other citizens of the town of Montgomery and the Central & Montgomery Railway Company, established a depot at a point more than 1,000 yards from the court-house, in the town of Montgomery, where it has since transacted its business, abandoning the depot formerly established and used; that, after making the contract on which he sues, he bought property in the town of Montgomery, which has been greatly depreciated in value by the removal of the depot; and for damages thus sustained he brings this action, based on the contract before referred to. There is no averment that the two railway companies have been voluntarily or involuntarily consolidated or amalgamated, nor is there any averment from which this can be inferred, or from which it can be inferred that the Central & Montgomery Railway Company is not an existing corporation, clothed with all the rights, powers, and franchises it ever possessed.

Appellant filed demurrers to the petition, which were as follows: "(1) The defendant excepts to the plaintiff's petition, and says that it appears therefrom that the Central & Montgomery Railway Company is a proper and necessary party defendant in this case, and this action ought not to proceed without said company is a party. (2) For further exception to said petition, defendant says that the same states no facts which show, or tend to show, that the defendant is liable on the contract or breach of contract alleged to have been made with the Central & Montgomery Railway Company." These demurrers were overruled, and this ruling is assigned as error.

Appellant pleaded general denial, and by special answer alleged, in substance, that for a valuable consideration it purchased from George Sealy, who was the sole stockholder in the Central & Montgomery Railway Company, — all of its bonds having been paid off and destroyed, — the Central & Montgomery Railway, free from all debts, stock, bonds, or otherwise; that upon the faith of such purchase its officers took possession of the road, and operated the same under color thereof, until September 6, 1887; that it had no notice of appellee's contract, and never in any manner assumed the obligations of the Central & Montgomery Railway Company; that on September 6, 1887, it purchased at sheriff's sale, under a valid judgment, execution, and levy, (which are particularly described,) the entire road-bed, track, franchises, and charter of the Central & Montgomery Railway Company, its right of way and depot grounds, being its entire line from Navasota to Montgomery, to all of which, on the same day, the sheriff executed and delivered to it a deed in due form of law; that all acts of its officers in the premises down to September 6, 1887, were ultra vires; and that on that day, by said purchase and sheriff's sale, it acquired the property free from all claims against the Central & Montgomery Railway Company which were not liens on the same prior to the said judgment. Demurrers to the special answer were sustained, and this ruling is assigned as error. These rulings present the main questions to be determined in the case.

If, giving to the petition the broadest intendments possible, under its averments, there could be doubt...