Appeal from district court, Dallas county; Edward Gray, Judge.
FLY, J.
This suit was instituted by appellee to recover money paid, and to cancel two deeds made to appellant, on a contract which, it was alleged, had been violated and repudiated by appellant. The contract was in relation to the building and operating of a certain line of railway to certain land belonging to appellee, in the suburbs of Dallas. Appellant answered that he had complied with his contract, and begun and for a long time continued to run trains over the railway, and had only ceased when appellee failed to comply with his contract. He admitted that appellee had paid to him, on the contract, $9,100. The contract required the payment of $20,000. The case was tried with a jury, and resulted in a verdict and judgment in favor of appellee for the right of way, for two acres of land, and for the sum of $11,377.21.
We draw the following conclusions from the statement of facts:
The following contracts formed the basis of the suit:
"Dallas, Texas, April 8th, 1890. Upon the condition and for the consideration that T. L. Marsalis, of Dallas county, Texas, his associates or assigns, whoever they may be, shall build, or cause to be built, a line of railway, to be operated by steam power, or by cable or electricity, from some point on the line of the Dallas and Oak Cliff Railway, in Dallas county, Texas, over and across a tract of 74 acres of land conveyed to J. D. Thomas by W. J. Betterton and wife on the 24th day of November, 1888, situated in the W. H. Hord survey, and into a tract of land conveyed by T. J. Oliver to said J. D. Thomas on the 13th day of July, 1889, as far south as its center, situated in the Thomas McDowell survey, Dallas county, Texas, and thence to run westwardly on said Thomas' land to the west line of his Hopkins tract. The said line of railway to be located on said tract of land where the said T. L. Marsalis may deem proper, so that it crosses the G., C. & S. F. R. R. not nearer than two hundred yards east of the bridge across Cedar creek next to Beckly road, and shall pass up one of the ravines east of the old Hopkins residence, and shall be completed, equipped, and ready for operation, within twelve months from this date, to said point as far south as the center of said Thomas' Thomas McDowell tract, and the residue of said line in one year more, and shall be operated one year after completion, at least one year from this date, on a regular schedule, running at least two cars or trains each way in the morning from 6:30 a. m. to 8:30 a. m., one at 12:00 m., one at 1:00 p. m., and in the afternoon two trains between the hours of 5:00 and 7:00 p. m., as near as practicable, and afterwards in a reasonable manner to accommodate the travel. For value received, and in consideration of the performance of the above stipulation, I promise to pay to the order of T. L. Marsalis, at Dallas, Texas, $20,000.00, as follows: $5,000.00 when one-half of the roadbed of said railroad is completed, $5,000.00 when the roadbed of said railway is completed, $5,000.00 when the ties are laid and said railway is ready for the rails, and the balance, $5,000.00, six months after said railway is completed as above specified. This agreement to draw further interest at the rate of eight per cent. per annum from maturity. [Signed] J. D. Thomas.
"I accept this agreement, and agree to perform the stipulations thereon on my part. [Signed] T. L. Marsalis."
"Dallas, Texas, April 8th, 1890. As part of the consideration of the obligation of J. D. Thomas in the contract between him and T. L. Marsalis delivered herewith, it is further agreed between the parties as follows: 1st. The cars on said railway provided for in said contract shall either run directly into the city of Dallas over the Dallas and Oak Cliff Railway, or they shall connect with the cars of said road so as to afford as quick a transit as practicable into the city. 2nd. There shall be at least four stations on the road to be built on said Thomas' land, at points which may be agreeable to him, so they are practicable for stations. 3rd. The said T. L. Marsalis shall furnish free tickets to the families of such persons as may purchase, in the two tracts of land referred to in said obligation, lots from said J. D. Thomas from stations most convenient to their lots into the city of Dallas, for two years from date of conveyance of such lots to them, provided said conveyances shall be made within three years from date of completion of
said road. 4th. The said J. D. Thomas is to furnish T. L. Marsalis right of way one hundred feet wide through said land. [Signed] T. L. Marsalis. J. D. Thomas."
"As part of the consideration for the undertaking of T. L. Marsalis in a certain agreement dated April 8th, 1890, but which was delivered and became effective at the date of this agreement, in relation to the building of a line of railroad through the lands of J. D. Thomas, said Thomas hereby agrees with said Marsalis that the profits, after reserving to said Thomas four hundred and fifty dollars per acre on the said Thomas' forty acres of land in the John McDowell survey, in Dallas county,—the same conveyed to said Thomas by T. J. Oliver,—and after paying all further expenses to be incurred in surveying and selling said forty acres, or in making such streets or other improvements thereon as the parties may think proper, shall be equally divided between the said Marsalis and said Thomas; that is to say, out of sales to be made of the forty acres said Thomas is to have four hundred and fifty dollars per acre, and the net profits above that sum shall be equally divided between said Thomas and said Marsalis. [Signed] J. D. Thomas. June 7th, 1890."
"Dallas, Texas, October 22nd, 1890. This is to certify that J. D. Thomas, of even date herewith, grants right of way to T. L. Marsalis for the railroad through the lands of said Thomas in South Oak Cliff, including the 40 acres known as the `Taylor Land.' He owns only an half interest undivided in said 40 acres, and this grant is to be construed as conveying only to the extent of his interest. The other half is owned by said Marsalis, and he appropriates his interest in the land set out for right of way to uses of the railroad in the same manner as said Thomas appropriated his own; it being understood that any part of the one hundred feet set out as right of way, and not necessary for railroad purposes, may be used for streets. A further consideration for the grant of right of way by said Thomas, in addition to those named in his deed, is that said Marsalis shall furnish free tickets from points on this line of road, into the city of Dallas, for families of persons to whom said Thomas may sell lots in his Betterton or Oliver lands, for two years from time of sale, provided the sale be made within three years from time of completion of said road. [Signed] T. L. Marsalis."
"Dallas, Texas, November 21st, 1890. It is mutually agreed between the parties to the contract...
