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

• Decision Date: 10 November 1891
• Citation: 17 S.W. 534
• Parties: GULF, C. & S. F. RY. CO. v. JONES.
• Court: Texas Supreme Court

17 S.W. 534

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

Supreme Court of Texas.

November 10, 1891.

Commissioners' decision. Section A. Appeal from district court, Collin county; H. O. HEAD, Judge.

Action by J. E. Jones against the Gulf, Colorado & Santa Fe Railway Company, for breach of contract, and to cancel a deed. Judgment for plaintiff. Defendant appeals. Affirmed.

J. W. Terry and Alexander & Clark, for appellant. Garnett, Muse & Mangum, for appellee.

COLLARD, J.

Viewing this case from the stand-point of the appellee, who was the plaintiff below, it may be stated as follows: Plaintiff owned about 1,350 acres of land in Collin county. Defendant's railroad ran through a part of the land, and in March, 1886, plaintiff conveyed to the company a right of way where the road was to run in consideration of one dollar, and the enhanced value to accrue to the land. Expecting to still further increase the value of his land, which was all in one body, plaintiff was desirous of having the company locate a depot and town on the survey, and for this purpose he offered to donate to the company 22 acres more of the same. The citizens of a small town in the neighborhood were also bidding for the depot. On the 2d day of June, 1886, one Col. Wylie, who was agent for the company to secure right of way along its route, came to see the plaintiff, in the interest of the company in reference to the depot and the land donation. While the matter was being discussed, Wylie produced a telegram from Snyder, the company's general manager, saying that if plaintiff would not give 25 acres of land the company would not locate its depot on his land. Plaintiff offered to donate the 25 acres, but Wylie demanded 22 acres of plaintiff's survey at a designated place, and 3 acres of land belonging to one Montgomery, adjoining, for convenience in grading. The negotiations resulted in a verbal agreement, by which defendant was to locate its depot on the 22 acres, at or near station 1674, between stations 1670 and 1678, for which plaintiff was to donate to the company the 22 acres, and to secure the 3 acres on the Montgomery land at his own cost. He gave Wylie $120, to tender Montgomery for the part of his land required. The company needed about 62 acres more of plaintiff's land, and afterwards offered him $2,080 for the same, which he agreed to; and on the 21st day of June, 1886, Wylie, acting for the company, drew up a deed for the 22 acres and the 62 acres, stating the consideration to be $2,080, for the entire 84 acres, (about that quantity,) omitting the facts of donation of the 22 acres, and the agreement to locate the depot on the same, Wylie explaining that the company wished to avoid an accumulation of deeds. Plaintiff called Wylie's attention to the fact that the deed did not mention the depot, and Wylie replied "that was all settled, and he would put that in another instrument." The other instrument was prepared by Wylie in writing, and is as follows:

"The state of Texas, county of Collin. Know all men by these presents, that I, J. E. Jones, of said county and state, in consideration of the purchase of land from me for the location of a town-site and the location of a depot at a point between stations 1670×00 and 1678, on the located line of the Gulf, Colorado & Santa Fe Railway running north-east to Red River, via Farmersville, I do hereby agree and bind myself, my heirs and legal representatives, to secure and pay for one hundred feet of right of way on the land of J. L. Montgomery, from 1670×00 to 1657×00 in order to secure grade for depot purposes without delay. In order that the said company shall not be in any way damaged by delay in construction, I further agree and bind myself to pay said railway company at its office in Galveston any and all damages that the said company shall sustain by such delay that may be occasioned by me in failing to procure said right of way by legal process or otherwise. In witness whereof, witness my hand this 21st day of June, 1886, in the presence of the subscribing

                witnesses.                   J. E. JONES
                  "J. S. RIKE
                  "L. E. BUMPAS."
                

The deed and the foregoing instrument in writing were both executed and delivered to Wylie at the same time, and sent by him to the company, he at the time paying plaintiff the stipulated consideration expressed in the deed, $2,080. Plaintiff, according to the contract, had the three acres of Montgomery's land condemned for the use of the company, at a cost paid by him of $220. The company did not locate the depot on the 22 acres, but on other 11 acres, bought by them from Montgomery. Had the company located the depot where plaintiff claimed it should be, at station 1674, or between stations 1670 and 1678, his other land would have been increased in value $3,000 or $4,000. Plaintiff brought this suit against the company, setting up the foregoing facts, and that the true consideration was not stated in the deed, and not fully stated in the written instrument. He prayed for cancellation of the deed to the 22 acres, damages to his other land by having it left in bad shape by carving out the land deeded to defendant, the amount paid by him for the Montgomery 3 acres of land, and for damages to the unsold part of his 1,350 acres of land; that is, the difference in its value as now situated and the value in case defendant had located its depot according to the contract. He also alleged that Wylie was fully authorized to make the contract to locate the depot, and that the company, with full knowledge of the facts, ratified the same. He set up fraud of the company, through its authorized agent, in representing to him that the depot would be located as stated, by which he was deceived, and induced to give the 22 acres of his own land, and procure the Montgomery 3 acres, which he would not have done had he known the company would not put the depot on his land.

The case, as made by defendant's evidence, was that Wylie was only authorized to procure right of way for the road, and had no authority to contract for the location of the depot, and that he did not do so; that the company paid the consideration as stated in the deed without any knowledge of the alleged acts or promises of Wylie. Defendant relied upon the deed and the contract in writing, the terms of which could not be changed by parol, and which in fact stated the only agreement of the parties. The charge of the court submitted to the jury the issue as to whether or not, the contract to locate the depot as alleged by plaintiff was made by defendant or its lawfully authorized agent, and, if made by an agent not authorized, whether the company ratified it with knowledge of the facts; and they were instructed that, if they should find for plaintiff on these issues, that defendant failed to so locate its depot, and that plaintiff's adjacent land would have been worth more, in case defendant had complied with its contract, than it was with the depot as actually located, they should find for plaintiff, as damages, the increase in such value. The court also instructed the jury as follows: "If you find for plaintiff, you will not allow any sum to him as compensation for any land he may have conveyed to defendant, or for any sum he may have paid for it to Montgomery, as the consideration for the contract to locate the depot as aforesaid; but the measure of his damages would be restricted to such sum as will fairly compensate him for the increased value of his land, if any, that would have resulted had the depot been located in compliance with the agreement; and you will not regard any evidence admitted before you as to the value of the 22 acres, which plaintiff claims to have conveyed to defendant as the consideration of said contract, in so far as it bears upon the measure of damages, if any." The issues of fraud and misrepresentation were not submitted to the jury. No objection was or is made to the charge. There was a verdict and judgment for plaintiff for $3,000, from which defendant has appealed.

Appellant's first assignment of error is that the court erred in overruling defendant's first special exception, viz.: "To all that portion of plaintiff's third amended original petition which alleges another consideration for the sale of the 83 20-100 acres of land than the consideration expressed in the deed itself; because plaintiff alleges no accident, fraud, or mistake in the execution or delivery of the deed, and because it clearly appears from plaintiff's allegations that he was fully cognizant of the exact wording and framing of the deed of conveyance; that he and defendant's agent W. D. Wylie clearly understood the exact language and meaning of the deed, but agreed between themselves, for purpose of convenience, to interpret it differently from its plain and unambiguous meaning; and for further reason, under this special exception, defendant says the contract, as set out in plaintiff's said petition, and alleged as contemporaneous and as a part of said contract of sale, does not imply that the location of defendant's depot was any part of the consideration for conveyance of said land." The general rule is well understood that a parol agreement cannot be ingrafted upon a written contract clear in its terms, in the absence of fraud, accident, or mistake. Bruner v. Strong, 61 Tex. 557; Railway Co. v. Pfeuffer, 56 Tex. 67; Railway Co. v. Garrett, 52 Tex. 137. The exceptions to the rule are as familiar as the rule itself, namely, that a deed absolute on its face may be shown to be a mortgage or a trust, and that the consideration in a deed is not properly stated. Gibson v. Fifer, 21 Tex. 261; Railway Co. v. Pfeuffer, 56 Tex. 66. But in the case of Railway Co. v. Garrett, 52 Tex. 137, where the deed to the railway company for right of way recited a consideration of one dollar paid, "and the further consideration that the said company will locate its railroad over my land situated in Marian county," it was held by...