Wooten v. Dermott Town-Site Co.

• Decision Date: 22 May 1915
• Docket Number: (No. 8203.)
• Citation: 178 S.W. 598
• Parties: WOOTEN et al. v. DERMOTT TOWN-SITE CO. et al.
• Court: Texas Court of Appeals

178 S.W. 598

WOOTEN et al. v.DERMOTT TOWN-SITE CO. et al.

(No. 8203.)

Court of Civil Appeals of Texas. Ft. Worth.

May 22, 1915.

Appeal from District Court, Mitchell County; W. W. Beall, Judge.

Action by H. O. Wooten and another against the Dermott Town-Site Company and others.Judgment for defendants, and plaintiffs appeal.Reversed and remanded.

Younge & Younge, and Royall G. Smith, of Colorado, Tex., for appellants.Shepherd & Sandusky, of Colorado, Tex., and M. Carter, of Colorado, Tex., for appellees.

CONNER, C. J.

H. O. Wooten and the Roscoe, Snyder & Pacific Railway Company sued L. E. Lassiter and R. H. Looney, doing business under the firm name of Dermott Town-Site Company, for the specific performance of a contract for the conveyance of land, and in the alternative for a judgment upon the bond given by the Dermott Town-Site Company in the sum of $2,000 to secure the performance of the contract.The defendants, among other pleas, urged a general demurrer to the plaintiffs' petition, which, after a hearing, was sustained by the court, and, plaintiffs having declined to amend, the suit was dismissed.From the judgment of dismissal the plaintiffs have appealed, and assign error to the action of the court in sustaining the general demurrer.

The contract declared upon was attached as an exhibit to the plaintiffs' petition, and provided, in substance, that the Dermott Town-Site Company would "donate" to the railway company "a strip of land along the right of way of said Roscoe, Snyder & Pacific Railway Company 2,000 feet long and sufficient in width to make 300 feet wide, including the present Roscoe, Snyder & Pacific Railway right of way 100 feet wide, said strip of land to be taken from each side of said road as the party of the first part may elect."The contract further provided that the town-site company would "convey to H. O. Wooten 150 acres of land lying along the south side of the right of way of the Roscoe, Snyder & Pacific Railway above described and its east line extending along the east side of said section 398, which is in block 97, Houston & Texas Central Railway Company survey to the south line of same, and said tract of land shall extend sufficiently far westward along the south line of said section and the south line of the above-said right of way to a sufficient distance to include 150 acres, the west line of said tract being parallel with the east line of said section."It was alleged that the agreed conveyance to H. O. Wooten was for the benefit and use of the railway company, and that the section of land intended to be designated was section 399, instead of section 398, as mistakenly entered.The contract recited that the town-site company held the section of which the above-described 150 acres was a part subject to a lien in favor of one John W. Mooar for purchase money, and it was provided that to secure the performance of the agreement to convey to the said H. O. Wooten said 150 acres of land the town-site company would execute a bond in the sum of $2,000.In consideration of all which the railway company agreed to construct sidings and such switches as should be necessary to transact its business for the accommodation of the traffic of the town site and adjacent country, and to erect and construct suitable stock pens and a depot building at a point on the line of said railway adjacent to the town site of Dermott, and at a point to be mutually agreed upon by the parties.The bond provided for in the contract was executed by the town-site company simultaneously with the execution of the contract.The bond was made payable to H. O. Wooten in the sum of $2,000 conditioned upon the discharge of the said lien in favor of Mooar within a period of two years from the date of the bond.It was alleged that the railway company had performed its part of the contract by locating its switches, stock pens, and depot at the designated point adjacent to the Dermott town site, and the plaintiffs prayed for a correction of the contract and for a specific performance.

It was further alleged, with a view of obtaining alternative relief, that in fact at the time of the making of the contract the Dermott Town-site Company did not own the land it had so contracted to convey to the plaintiffs, but that, on the contrary, the title was in said John W. Mooar, who had contracted to sell the section of land named, together with several other sections, to the town-site company, and, pursuant to the terms of the contract between those parties, the said John W. Mooar had deposited a deed in escrow, but that, the town-site company having failed to perform the conditions of the sale, the deed was never delivered, but, on the contrary, was withdrawn by the said John W. Mooar, and the contract under which the town-site company claimed entirely canceled.Wherefore it was alleged that the town-site company now was wholly unable to perform the contract to convey the lands to the plaintiffs, and the prayer was that, should the facts be so found, the plaintiffs have judgment upon the bond against the defendants for their damages.There were numerous other allegations, but we think such as are material to a disposition of the appeal have been substantially above stated.

The contention below and before this court in aid of the demurrer is that the contract in question manifests a purpose to convey to H. O. Wooten for the use and benefit of the railway company land for purely speculative purposes, and that under the laws of Texas a railway company may not lawfully hold or receive donations of real estate "unless the same is to aid in the construction and use of its railway, or else for the purpose of collecting some debt due such company," citing in aid of the contention so stated the following authorities: Article 6537, 6538, Vernon's Sayles' Civil Stat.;Case v. Kelly, 133 U. S. 21, 10 Sup. Ct. 216, 33 L. Ed. 513;House of Mercy of N. Y. v. Davidson, 90 Tex. 529, 39 S. W. 924;Scott v. Bank, 66 S. W. 485.

Assuming, as we should perhaps do (Edwards Co. v. Jennings, 89 Tex. 618, 35 S. W. 1053), that if the contract is invalid, as appellees insist, there can be no recovery upon the bond, we will proceed to a determination of the proposition presented in the above contention, which it is conceded embodies the controlling question in the case.

We wish to observe, first, that in the case of Case v. Kelly, cited by appellee, the decree of the United States Supreme Court declaring a donation to a railway company invalid was predicated upon statutes of Wisconsin prohibiting such donations.And in the case of House of Mercy v. Davidson, supra, by the Supreme Court of this state, a donation to the appellant in that case, which was a corporation, was declared invalid upon the ground that the charter of the corporation prohibited its taking and holding property beyond a certain value, and that at the time of the donation there under consideration the corporation already owned property of the prescribed value.What was said by Mr. Justice Key of the Austin Court of Appeals relating to the subject under consideration in the case of Scott v. Bank, 66 S. W. 485, was based upon limitations of the statutes relating to the powers of private corporations...