Weatherford, M. W. & N. W. Ry. Co. v. Wood

• Citation: 30 S.W. 859
• Parties: WEATHERFORD, M. W. & N. W. RY. CO. v. WOOD.
• Decision Date: 25 April 1895
• Court: Texas Supreme Court

30 S.W. 859

WEATHERFORD, M. W. & N. W. RY. CO. v. WOOD.

Supreme Court of Texas.

April 25, 1895.

Error to court of civil appeals of Second supreme judicial district.

Action by M. B. Wood against the Weatherford, Mineral Wells & Northwestern Railway Company. There was a judgment for plaintiff, which was affirmed by the court of civil appeals (29 S. W. 411), and defendant brings error. Affirmed.

B. G. Bidwell, for plaintiff in error. A. H. Culwell, for defendant in error.

DENMAN, J.

Wood had a judgment against the railroad for $1,000. In satisfaction of such judgment the railroad verbally agreed to pay Wood $800 cash, and issue him a pass over the road for himself and family for a period of 10 years, the pass to be issued annually on the first of each year; and to stop its trains at his house, to let him and his family get on and off, whenever they desired to do so during said 10 years. In accordance with this agreement the railroad immediately paid the $800, and issued the pass to Wood and family, and stopped the train at his house for his family to get on and off, as agreed, during the first two years of the contract, but declined to issue any pass or stop the train at Wood's house for his family to get on and off after the second year, whereupon Wood sued the railroad for damages for breach of the contract. The defense was based upon the proposition that no action could be maintained upon the verbal contract, because it was not to be performed within one year. Judgment for plaintiff having been affirmed by the court of civil appeals, the railroad has brought the case here upon the alleged ground that "the court of civil appeals erred in holding that the verbal contract for the breach of which appellee, Wood, seeks redress is not within the statute of frauds of the state of Texas." The statute provides that "no action shall be brought upon any agreement which is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized." Rev. St. art. 2464. It seems to be pretty generally held in the English and most of the American courts that the agreement is not within the statute where (1) the agreement is of such a character that either party thereto may perform his part thereof within a year, though the other party cannot, or (2) the consideration for the agreement not performable within the year has been paid or executed. In fact, this class of decisions excludes from the operation of the statute all agreements except those which cannot be performed by either side within the year. Since such contracts are rare, this ruling virtually repeals the statute. Blanding v. Sargent (N. H.) 66 Am. Dec. 720; Wolke v. Fleming (Ind. Sup.) 2 N. E. 325; Suggett v. Cason, 26 Mo. 224; Perkins v. Clay, 54 N. H. 518. While these questions appear never to have been passed upon by this court, though one of them was raised in the brief of appellee in Miller v. Roberts, 18 Tex. 16, nevertheless it early evinced a strong disinclination to follow any construction of the statute of frauds which defeats the legislative will. Garner v. Stubblefield, 5 Tex. 552. Subsequent rulings in reference to that clause of the statute relating to contracts for the conveyance of land indicate the settled policy of adhering to the intention of giving effect to the statute, except where the contract has been so far performed that it would be inequitable to refuse specific performance, such a case not being presented by mere payment of consideration and taking possession. Thouvenin v. Lea, 26 Tex. 612; Lodge v. Leverton, 42 Tex. 25; Murphy v. Stell, 43 Tex. 124; Bradley v. Owsley, 74 Tex. 69, 11 S. W. 1052. Some learned courts, whose reasoning is difficult to answer, have given effect to that clause of the statute under consideration here by holding it applicable to that numerous class of cases where the contract or agreement of the party sought to be "charged therewith" in the particular suit was not to be performed within the year, though the promise of the other party was performable within the year, or the consideration executed. Pierce v. Paine, 28 Vt. 36; Sheehy v. Adarene, 41 Vt. 541; Parks v. Francis, 50 Vt. 626; Doyle v. Dixon, 97 Mass. 209; Frary v. Sterling, 99 Mass. 462; Bartlett v. Wheeler, 44 Barb. 162; Reinheimer v. Carter, 31 Ohio St. 586; Broadwell v. Getman, 2 Denio, 87. Under the view we have taken of this case, it does not become necessary for us to determine now which of these two conflicting lines of decisions we will follow. It seems to be well settled that where there is a contingency expressed upon the face of the contract or implied from the circumstances, upon the happening of which within a year the contract or agreement will be performed, the contract is not within the statute, though it be clear that it cannot be performed within a year, except in the event the contingency happens. Thus an agreement to give an annual pass over a railroad during life is performable by the happening of the implied contingency of the death of the donee within the year, and is not within the statute. Railroad Co. v. English (Kan. Sup.) 16 Pac. 82. So an agreement to support a child or children until majority will be performed upon the happening of the implied contingency of the death of such child or children within the year, and is therefore not within the statute. Peters v. Westborough, 19 Pick. 364; Wiggins' Adm'r v. Keizer, 6 Ind. 252. So an agreement not to do business at...