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

• Decision Date: 16 January 1891
• Citation: 15 S.W. 228
• Court: Texas Supreme Court
• Parties: GULF, C. & S. F. RY. CO. v. SETTEGAST <I>et al.</I>

15 S.W. 228

GULF, C. & S. F. RY. CO. v. SETTEGAST et al.

Supreme Court of Texas.

January 16, 1891.

Appeal from district court, Harris county.

Jones & Garnett, for appellant. Stewart & Stewart and Geo. H. Breaker, for appellees.

GAINES, J.

This action was brought by appellees to cancel an assignment of a lease, which had been made by them to the Texas Western Railway Company, and which had been assigned by the latter to the Gulf. Colorado & Santa Fe Railway Company, and to recover damages. Both companies were made parties defendant. There was a verdict against the appellant for $8,000 in favor of the appellees, and against the latter in favor of the Texas Western Railway Company. Judgment was rendered in accordance with the verdict. On the 26th day of December, 1881, the plaintiffs below leased to the Texas Western Railway Company 31½ acres of land lying contiguous to the city of Houston for the term of 10 years. In consideration of the stipulations in its favor, that company obligated itself to pay to the lessors an annual rent of $300, the first year's rent to be paid on the 1st day of January, 1883 and that of each succeeding year to be paid on the 1st day of January next thereafter ensuing. It was also stipulated that at the end of the term the railroad company should pay the lessors for the land included in the right of way at the rate of 2½ cents per square foot, and at the same time the lessors were also to convey to the company 40 lots of fixed dimensions at a stipulated price, to be paid upon a tender of a deed. The company also had the privilege of buying other lots at a price to be determined by appraisement. The company bound itself to pay for any timber taken from the land, except such as was found upon its right of way; not to remove any earth which was outside of its right of way; and upon the termination of its lease "to deliver to" the lessors "such portion of said premises as they may not purchase, in as good condition as when received." The Texas Western Railway Company entered under the contract. In May, 1883, the Texas Western Railway Company agreed to convey "all its right, title, and interest in and under its contract and lease made with W. J. & J. J. Settegast" to the Gulf, Colorado & Santa Fe Railway Company; the latter agreeing "to pay the yearly rental therein specified" until the termination of the lease, and at that time to pay for the former company's right of way. On the 7th day of January, 1884, the attorneys of the Gulf, Colorado & Santa Fe Railway Company tendered to W. J. Settegast a draft, of which the following is a copy: "$300.00. Houston, Texas, January 7th, 1883. At sight, pay to the order of W. J. Settegast & Bro. the sum of three hundred dollars, the same being for one year's rent from January 1st, 1883, to January 1st, 1884, of land leased from them by the Texas Western Railway Company, and upon which land the Gulf, Colorado and Santa Fe Railway Company have built their road. [Signed] JONES & GARNETT, Attorneys for G. C. & S. F. Ry. To Walter Gresham, Galveston, Texas." It was admitted that the date "1883" in the draft was a mistake for 1884. The draft was accepted by W. J. Settegast, and was paid. Gresham was at the time the appellant's agent. W. J. Settegast testified as follows: "The draft [by which he received the rent for 1883] was paid to me by Mr. Garnett. My understanding was that he paid it for the Texas Western Railway. I objected to receiving it, because it was not written exactly as I wanted it. Mr. Garnett assured me it would not impair any of my rights against the Santa Fe Railway. I never did claim that the Santa Fe was my tenant. When Mr. Garnett presented the draft to me he just told me he wanted to pay that rent. I told him I did not like the way the draft was drawn; I was afraid it might impair my rights against the Texas Western Railway. He told me it did not impair my rights. I objected to the draft, because I was afraid it might impair my rights against the Texas Western Railway; that I did not recognize the Santa Fe Railway. I did not know, when I received the money, that the Gulf, Colorado and Santa Fe was paying it. Mr. Garnett did not tell me, when he tendered me the draft, that it was the rent of the land that the Gulf, Colorado and Santa Fe Railway proposed to pay. I told him that I did not recognize the Santa Fe."

Counsel for appellees, as a reason why appellant should not claim any rights under the assignment of the lease, insist that the contract between the companies is not operative, because it was not in writing and signed by the party to be charged, as required by the statute of frauds. But the authorities seem to be agreed that the invalidity of a parol contract within the statute cannot be set up by a stranger to it. The defense is personal to the party sought to be charged. League v. Davis, 53 Tex. 14; Lee v. Wilmerding, 57 Tex. 444; Lavender v. Hall, 60 Ala. 214; Norton v. Simonds, 124 Mass. 19; Cowan v. Adams, 10 Me. 382; Ryan v. Tomlinson, 39 Cal. 644; Babineau v. Cormier, 1 Mart. (N. S.) 459; Cunningham v. Patton, 6 Pa. St. 357; Dock Co. v. Kinzie, 49 Ill. 289; Bohannon v. Pace, 6 Dana, 194; Sneed v. Bradley, 4 Sneed, 301; Rickards v. Cunningham, 10 Neb. 417;¹ Anderson v. Simpson, 21 Iowa, 404; Clary v. Marshall, 5 B. Mon. 269. But in this case there was a distinct proposition by the Santa Fe Company by letter to the Texas Western Company, showing all the terms of the contract; and there was evidence to show that the latter company accepted also by letter. This answered every requisite of the statute. Watson v. Baker, 71 Tex. 739, 9 S. W. Rep. 867; Reed, St. Frauds, § 341 et seq. Besides, the Santa Fe Company having gone into possession, and having made improvements, (valuable at least to itself,) and having paid a year's rent, there was such a part performance as would enable it to enforce a specific performance of the contract as against the Texas Western Company.

Proceeding with the questions in their logical order, the next we shall consider is presented by counsel for appellant. They submit that the contract between the two railway companies was an assignment, and that as such it was not prohibited by our statute. In so far as they claim that the contract was an assignment, this ground is well taken. When the lessee conveys his entire term in the whole or a part of the demised premises it is an assignment of the lease; but when he lets the premises for a less time than the period of his unexpired term it is an...