East Line and Red River Railroad Co. v. A. J. B. Garrett, 52 Tex. 133

Bonner, Associate Justice. The first error assigned is, that “the court erred in its charge to the jury in this: the jury were instructed, in substance, that the deed to the right of way -must be for a valuable consideration before it could avail defendant.” From one clause of the ■ charge, abstractly considered, it might be inferred that it was the opinion of the presiding judge that a valuable consideration was necessary to convey the right of way, as this was the converse of the proposition therein stated.

But, taking the charge as a whole, this is not the proper construction to be given to it, as, in a subsequent portion, the jury were instructed that, the issue presented by the plaintiff on this branch of the case was the want of consideration in the deed made to defendants, joined with false and fraudulent-representations made by the company and its agents in its procurement. The plaintiff' claims damages for the failure of defendant to carry out an alleged contract to locate a depot on his land. Upon this point the defendant assigns as error substantially that the verdict was contrary to the evidence.

If the verdict was based upon the testimony on this issue, then we think that it was clearly without evidence to support it, the plaintiff himself testifying that there was no such contract. Plaintiff further claims to recover by reason of false and fraudulent representations of defendant- and its agents that they would locate a depot upon his land, by which he was induced to execute the deed.

Upon this issue is based the seventh error assigned, viz.: “The court erred in permitting plaintiff to testify to declarations of Harrison, Taylor, and Bussell, directors in the road, when it was not shown, or attempted to be shown, that, when when the declarations and admissions were made, said directors were doing any act for the. railroad, as appears by bill of exceptions number 2. “ Plaintiff below testified that Harrison, Bateman, Taylor, and Russell told him, before the deed, dated June 30, 1876, was executed, that he should have a depot on his land, and that Bussell, more than a month before the deed was executed, stated that the company had agreed to give him a depot, but that he must give two or three acres for depot-houses, which evidence was objected to by the defendant below, as shown by bill of exceptions number 2, and was by the court admitted in evidence.” The testimony does not disclose the number or the powers of the directors, or that they had authority to bind the company by any such declarations as those imputed to them; neither is it shown that these declarations were made when they were in the performance of any act authorized by the company, so as to make them a part of the res gesta.

In our opinion, the exceptions to this testimony were well taken, and there was error in its admission. (Whart. on Ev., sec. 1174.) The ninth error assigned is as follows: “The judgment is against the law and evidence in this: plaintiff having executed and acknowledged his deed to the right of way, ought not, upon the unsupported testimony of himself, set it aside or ingraft upon it conditions not mentioned in the deed.” The attention of the presiding judge seems not to have been called to this question, as the point does not appear to have been taken in the motion for a new trial or otherwise, and thus presented should not, of itself, be sufficient to reverse the judgment.

As the case will be remanded, we deem it, however, proper to say that the deed expressly recites as the consideration the sum of $1 in hand paid by the defendant, and the “further consideration that the said company will locate its railroad over my lands situated in Marion county.” As this deed was executed by the plaintiff and accepted by the defendant, this recital is more than a bare receipt of the payment of the purchase-money: it- is also the written evidence of a contract between the parties that the plaintiff would grant the right of way, and that the defendant would construct its road over the same. [Opinion delivered November 4, 1879.] To permit a parol contemporaneous condition to be ingrafted upon a deed in writing, it should be upon proper allegation of fraud, accident, or mistake, and upon clear and satisfactory evidence.

It has been repeatedly held by this court that, to ingraft a parol trust upon a deed, the testimony should be clear and satisfactory, and should be scanned “with a strict and scrutinizing eye.” (Grooms v. Rust, 27 Tex., 234; Cuney v. Dupree, 21 Tex., 219; Mead v. Randolph, 8 Tex., 196; Markham v. Carothers, 47 Tex., 21.) The tenth error assigned is, that the verdict and judgment are excessive. Upon the testimony of the plaintiff himself, we think this error well taken.

He testified that none of the timber on the right of way was used by the defendant, and none cut thereon except such as was necessary for the construction of the road. The only damage shown to have been sustained by him is as follows: Seventeen acres, at $5 per acre......... ................... $85 00 Three acres, W. C. Ward survey, $5 per acre.......... 15 00 Three acres, J. J. Waixl survey, $5 per acre............ 15 00 One hundred and eighty acres, W. C.

Ward survey, 50 cents........................................... ........... 90 00 $205 00 Under this estimate, the verdict, being for $500, was excessive, and should have been set aside and a new trial granted. For the above errors, the judgment is reversed and the cause remanded. Reversed and remanded.