Action by W. T. Dickey against the Qua- | way company from Acme in a western direcnah, Acme & Pacific Railway Company. Judg- tion, to the Hardeman and Cottle county ment for plaintiff, and defendant appeals. boundary line and railway terminals in the Reversed and rendered, and rehearing denied. town of Quanah, which is to be paid and D. E. Decker, of Quanah, for appellant. furnished to the parties of the first part in Love, Channell & Fouts, of Houston, and W. consideration of the performance of the matT. Perkins, of Quanah, for appellee. ters and things thereinafter set out. It is further stipulated that the railway company should obtain an amendment of its charter, changing its name to the Acme & Western Railway Company; and it is further stipulated that the railway would, in 18 months from the date thereof, perform its part of the contract.

may be occasioned by constructing and operating said railway.

The evidence shows, in this case, that the railway company substantially complied with its contract with reference to establishing its depot, etc., and the construction of the road within less than 12 months from the date of the contract. The contract was properly signed by the president of the road and attested by the secretary, and by the trustees, Ledbetter and Goodlett.

The evidence in this case shows that the Acme, Red River & Northern Railway Company was chartered the 12th day of July, 1902, and that it obtained an amendment of its charter the 28th day of January, 1909, changing the name of the corporation to Quanah, Acme & Pacific Railway Company. Charters were offered for the purpose of showing that the roads named are one and the same and that at the time the contract was made between the parties it was understood an amendment would be secured, changing the name of the corporation to the present one, Quanah, Acme & Pacific Railway Company.

The evidence is not clear at just what time the appellee, Dickey, signed the subscription contract. He says in one part of his testimony that it was 30 or 60 days before he executed his note to the bank. On the 19th day of December, 1908, Dickey executed his note to the Quanah National Bank for the sum of $500 due July 1, 1909. On that date Ledbetter, as trustee, gave a receipt to Dickey for the sum of $500, in which it is recited the sum was deposited with the trustees under the articles of agreement to be entered into by Goodlett and Ledbetter, with the railroad mentioned in the memorandum contract, and the money was to be refunded in the event the railway did not comply with its contract. Dickey testified that at the time he signed the contract he did not know that the road was to be constructed by his property on that street, and stated:

At another place he said:

"I went to Ledbetter because he represented the committee. I went to him when I learned there on that street and told him if they dethere was talk of a railroad being located down cided to locate it down there my subscription did not go, I did not know at that time the railroad would go down that street. It had not been determined at that time where it would go. There was some talk about it. However, I wanted to make that condition. After I found the railroad tracks were going to be located along that street, I never did go to any officer of the railway company and tell him I protested against it going there. I did not because I did not know anything about the officers of that company. I did not make any inquiry as to whom the officers were. I went to the committee-the one getting up this bonus

and they told me it was not yet completed; that only about half the bonus had been completed."

Mr. Ledbetter testified:

Dickey called my attention to the fact that "It is a fact after this note was executed there was some likelihood of the railroad being located where it is now, near his property, and he came to see me about the matter. I had a conversation with him at that time about the matter. I went with him and looked over the situation with reference to his property, and he instructed me, or requested me, at that time, not to deliver his note until the location of the road was determined; that if it was decided to locate the railroad on that street by his property, to return his note to him. That was about the substance of the matter."

Dickey further testified:

"The first notice I gave this defendant railroad that I did not want the track there was when I filed this suit."

From the facts in this case it is shown that

no notice was given the railway company, or its officers, that Dickey had, in any way, revoked the authority of Ledbetter and Goodlett. It is shown that while the subscription list was not actually delivered to the railway company, its officers were aware of the signers' names on the list, and that W. T. Dickey had signed it and constituted Ledbetter and Goodlett as trustees, to make the contract with the road. Ledbetter was also president of the Quanah National Bank, "When I learned that there was some talk or and the note was made payable to that bank; idea about locating the track along that street, and the money obtained on the note and placI had a conversation with Mr. Ledbetter, the ed with the trustees to hold under the conman I delivered this money to, about it. My understanding was that the location of the tract with the railroad company. Dickey road was to be away along up here [indicating contends that he did not actually pay the the west part of the city somewhere]. I finally note, but that he had some money on deposit went to Mr. Ledbetter and talked to him about the matter before it was finally determined to with the bank, and afterwards that money locate the railroad along that street by my was taken by the bank and applied on the property. I asked him to keep that note sub- note, and that he did not consent thereto. ject to where the road would be built; that if the road was built anywhere else except down that street, I would pay it, and if not I would not pay it, and he agreed to keep it and protect the note so it could not get out of his hands into some one else's hands until it could be determined where the road was to be built, and if it was down that street where it is now, I was not to pay it. If it was not built on some other street, but was built along that street by my property, I was to have my note back. After I had this agreement, about which I have testified, I subsequently learned of a determination to locate the road down that street by my property, and I then, or later on, tried

The case was submitted to the jury upon special issues, and they found that the property, immediately before the construction of the railway, was worth $18,000 and immediately afterwards $16,000. They found that J. E. Ledbetter and J. B. Goodlett were authorized by plaintiff to contract with appellant company to construct a line of railway into the town of Quanah, and that Dickey signed the subscription list offered in evidence. They were unable to agree as to

contract, or that the proposition was not his, [ [5] However, there are facts in the record and that he did not know of its terms. He which would authorize the inference that does not allege or prove fraud or misrepre- the subscription was not completed until aftsentation inducing him to so sign. It must It must er appellee executed his note, December 19, therefore be held to be his contract, and that 1908. On this date appellee executed his he authorized the trustees to execute the note to the bank to obtain the money, which same, and who acted for him, as found by the he paid to the trustees and took a receipt jury. It is regarded by us as immaterial therefor, to hold until the railway company that the jury were unable to agree whether complied with the terms of its contract. This the memorandum was attached when appellee subscription and memoranda contract we are signed the subscription. inclined to believe amounted to a covenant between the co-obligors to secure the right over the street and indemnify the railway. The power given trustees, under circumstances of this case, indicates that it was not a mere naked power. There were rights of appellee's co-obligors to be considered and protected. We are clear, if the railway company had accepted the proposition, it was not a mere naked power which could be revoked at the will of the appellee. The testimony is not clear just when the railway accepted the proposition. The appellee says he learned that the road was to be constructed on the street after executing the note. The contract the trustees last made with the railway is dated February 26, 1909. Just when appellee gave the notice to Ledbetter is left to conjecture. We believe he should show that such notification was given before acceptance by the railway company. If he did not do so, then he cannot defeat estoppel or his contract by showing at some time he notified one of the trustees he would not pay the $500 and that it must be returned to him. Williams v. Rogan, 59 Tex. 438.

[4] Appellee pleaded that he revoked the power of the trustees to the contract for him, and so notified them. It will be noted from his testimony hereto set out that he told one of the trustees that he would not pay the $500 subscribed by him if the road was to be constructed on the street by his property. At the time he made this statement he had, some time previous, paid the money to the trustees. He had executed his note to the bank to obtain the money. In some portions of his testimony he demanded of Ledbetter, who was president of the bank, as well as one of the trustees named in the contract, to return his note, or to hold it until he ascertained definitely whether the road would be constructed. We do not find from the testimony that he anywhere revoked the power of the trustees to make the contract. We think it should be borne in mind that the trustees were invested with double power: One was to demand and collect the money subscribed and to pay the same over to the railway when it constructed according to its contract; the subscribers further authorized the trustees to contract in the name of the [6] This case presents a serious question subscribers, with the railway, to procure a whether, even before acceptance, the appelpermit from the city to construct the road lee could revoke the powers granted. The over the street and to procure a relinquish- testimony would indicate, while not conclument of the damages occasioned thereby sive, that all the subscription was paid and from the abutting owners and to hold the in the hands of the trustees before the purrailway harmless from such damages. The ported revocation. The power given the trusappellee did not erase, or ask that his name tees was to secure the right of way and jointbe erased from, the instrument granting this ly for the signers to indemnify the railway power. He did not in terms revoke the pow-company. The various subscribers must be er, but asked for his money back or for the return of his note. We find nothing from his testimony that he was unwilling that the trustees should contract to procure a reiinquishment of the damages or indemnified the railway against them. His testimony is when he signed he did not know that the road was to be so constructed; he afterwards learned of it and was unwilling to pay $500 if it passed his property on the street, but the testimony fails to show he was unwilling to secure the railway company against the damages. He may have been willing to so secure the right on the street, but unwilling to pay in addition $500. The

withdrawal of that sum subscribed did not necessarily revoke the power to the trustees for other purposes. It was understood that the money subscribed was not to be paid until the full $40,000 was subscribed. This appears to have been accomplished at least by

understood to have mutually agreed with each other to secure such right, and selected a given agency to perform that work and contract to that end. Powers are held irrevocable by the principal when such powers form part of an act deemed valuable in law,

or

"which forms part of the contract and is a security for money or for the performance of any act which is deemed valuable." Hunt v. Rousmanier, 8 Wheat. 175, 5 L. Ed. 589; Mechem on Agency, vol. 1, §§ 570, 588, inc.; Chapman v. Bates, 61 N. J. Eq. 658, 47 Atl. 638, 88 Am. St. Rep. 459; Smith v. Railway, 115 Cal. 584, 47 Pac. 582, 35 L. R. A. 309, 56 Am. St. Rep. 119.

This was an agreement between the joint obligors, for their benefit, to secure the construction of the railway and the selection of joint trustees to contract and obtain specific property and obtain relinquishments, with the power vested in the trustees so to con

law that such powers so conferred were ir-I were justified in so presuming and acting revocable by the principal, we nevertheless on the apparent unrevoked authority. We suggest the question, and refrain from holding that it in fact was such a power.

[7] In this case there is no plea or proof that notice was given to the railway that the powers of the trustees were revoked. While this is a special agency, we think, under the circumstances, the same rule should apply as to general agency. In this case appellee, in writing, specially authorized the trustees to make the contract; in other words, he in writing accredited the trustees to contract with the appellant. If the contract was not consummated at the time of the renunciation, appellee knew that the purported contract was on foot and had not yet been completed, and to permit the appellant to deal with the trustees without notice of the dissolution of the relationship would be unreasonable and unjust. He left in the hands of his agents a written power to execute a contract, in his behalf, prescribing the things to be agreed to. The appellant could reasonably conclude that the authority still continued and be thereby induced to act upon it. Appellee owed to appellant the duty to prevent that prejudice or injury.

believe, under the facts of this case, the court should have given the requested peremptory instruction, and also should have sustained appellant's motion to render a judgment for it upon the findings of the jury. The facts, we do not think, as contended by appellee, uncontroverted that appellee revoked the authority of the trustees to contract. They go only to the extent of withdrawing the agreement to pay $500, as heretofore pointed out, and there are no facts showing that notice was given appellant of any changed relationship whatever, and that appellant acted upon such power without any notice of the change.

The judgment will be reversed, and here rendered, that appellee take nothing by this suit, and that appellant recover its costs in this court and in the court below.

HALL, J., not sitting.

On Motion for Rehearing.

HUFF, C. J. It occurs to us appellee, in his motion for rehearing, overlooks the finding of the jury that Ledbetter and Goodlett

The

The facts show, in this case, that the rail-executed the contract with appellant as trusroad entered into the contract with appellee and his co-obligors relying upon the fact that the trustees were empowered to make it by virtue of the written instruments, executed and yet in the hands of the trustees, unchanged or unaltered. Mechem on Agency, vol. 1, §§ 628-633, inc. We believe the burden was on the appellee to allege and prove that the instrument was not only revoked, but

that appellant had notice of that fact. Appellant had set up the contract as a defense,

alleging it had been made by the authority of appellee. The writings prove the contract and the power. It was alleged by virtue thereof the appellant made a contract and complied with its provisions by constructing and operating the road where and within the time stipulated. Our Supreme Court in this state has said:

tee for appellee and others, and that appellee signed the subscription contract which empowered the trustees to act for him. contract was therefore the contract of aptially find the trustees were acting for appelpellee. The jury, by their findings, substanlee when they signed the contract as trustees and were authorized thereto by the subscription contract. They certainly would not have

so found if the power had been revoked, as contended by appellee. After appellant set up the contract which induced it to construct the railway where it did, appellee, in order to meet this phase of the case, alleged a revocation, and we think it was necessary on the part of appellee to so allege and prove it. As pointed out in the original opinion, after having given the power to contract to the trustees, we believe the burden was on the appellee to show appellant had notice of such revocation before he can set aside the contract, apparently lawfully executed. The trial court refused to submit the issue, at the request of appellant, to the jury as to whether appellant had notice of the revocation before signing the contract. The trial court, in his explanation to the bill of exceptions explains that he refused the request because there was no evidence on that point. We believe all the evidence in this case of notice is that given to Ledbetter, who was appellee's agent and not appellant's. The answer of appellant sets out the terms of the contract, in which it is alleged that appellant was induced to construct a railway in the street there[8] We think also, it being shown that the by. In the original opinion we used the term power existed at one time, the presumption "invited" instead of "induced," used by the should prevail that it continued, and that pleadings. We think this contract entered third parties without notice of a revocation into by the authority of appellee was suffi

"The rule of our law, as to the time when the revocation of an authority by the act of the principal takes effect, is equally clear, comprehensive, and just, As to the agent himself, it takes effect from the time when the revocation is made known to him, and as to third persons, when it is made known to them, and not before. And this the principal may do by making the revocation as notorious as the fact of agenUntil it is thus made known the principal is bound by the acts of his agent done within the scope of his authority, upon the familiar principle that when one of two innocent persons must suffer, he shall suffer most who by his confidence, or silence, or conduct, has misled the other." Cleveland v. Williams, 29 Tex. 214, 94 Am. Dec. 274; Ins. Co. v. McKinnon, 59 Tex. 507; Amarillo, etc., v. Brown (Civ. App.) 166 S. W. 658.