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In the case of Railway v. Shelton, 30 Tex. Civ. App. 72, 69 S. W. 653, it was held that HOUSTON & T. C. R. CO. et al. v. CITY OF $35,000 was not excessive for the loss of two

ENNIS et al. (No. 7733.) legs.

(Court of Civil Appeals of Texas. Dallas. Feb. In the case of Railway v. Kelly, 34 Tex.

2, 1918. Rehearing Denied Civ. App. 21, 80 S. W. 1073, the syllabus

March 2, 1918.) says:

1. RAILROADS 46 - CONSTRUCTION - PEB"In an action against a master for injuries PETUAL CONTRACTS. to a servant, 54 years of age, it appeared that plaintiff's injuries were to the back and spine, railroad company for a valuable consideration

Where a receiver contracting on behalf of a and a concussion of the spinal cord, and had agreed to establish headquarters for a division resulted in total paralysis of his lower limbs; at a particular town and to maintain adequate that he suffered great pain; that his eyes and buildings, machine shops, and roundhouses, and digestion were affected, and that the pain kept to supply the same with necessary machinery, him awake; that he had shown no improvement and the contract was observed by the receiver within a year, and that it was the opinion of and the succeeding railway company for over physicians that the paralysis was permanent, 20 years, it must be construed as a perpetual It was shown that prior to the injury he had contract which the company cannot terminate been earning from $100 to $125 per month. except on proof by clear and satisfactory eviIleld, that a verdict of $30,000 was not exces-dence that it could not with reasonable effort sive."

while complying with the contract perform the

duties owing to the public. In the case of Railway v. Gray, 137 'S. W. 2. RAILROADS 16 – CONTRACTS TO ESTAB729, the Austin court held that $30,000 was LISH DIVISION HEADQUARTERS-VALIDITY. not excessive compensation for a railroad In view of Rev. St. 1911, art. 6423, declarbrakeman paralyzed from the hips down.

ing that every railroad company chartered by In the case of Railway v. Webster, 99 Ark. keep and maintain its general offices within the

the state or owning or operating any line shall 265, 137 S. W. 1103, 1199, Ann. Cas. 1913B, state of Texas at the place named in its charter 141, the syllabus says:

for the locating of its general offices, and, if ne “$35,000 is not excessive recovery for per: keep and maintain its general offices at such

certain place is named, then the company shall sonal injury to a railway trainman, 35 years old, who was previously in perfect health, where place within the state where it shall have conthe injury has caused lateral curvature of the tracted or agreed or shall hereafter contract spine, intense pain, and permanent incapacity, or agree to locate its general offices for a valphysical and otherwise."

uable consideration, and that such railroad shall

keep and maintain its machine shops and roundThis court held that $30,000 was not ex- houses or either at such place or places as it

may have agreed to keep them for a valuable cessive damages for a boy whose face and consideration received, a contract entered into hands were mutilated and who was rendered by receiver of a railroad company to establish almost blind by an explosion. Waters-Pierce division headquarters with necessary roundhousCo. v. Snell, 47 Tex. Civ. App. 413, 106 s. es and machine shops at a particular town based

a valuable consideration and which was W. 170.

adopted by the succeeding railroad company is In Railway v. Matkin, 142 S. W. 604, the valid and enforceable. Austin court held $35,000 not excessive com- 3. RAILROADS Ow57—DECREE-CONSTRUCTION

-PROVISIONS. pensation for the loss of both legs below the

Where a railroad company attempted withknees.

out excuse to terminate a contract previously The Supreme Court of South Carolina, in entered into by a receiver of the property to esHuggins v. Railway, 96 S. C. 267, 79 S. E. tablish for a valuable consideration division 405, held that a verdict of $40,000 was not joining the company from removing from the

headquarters at a particular town, a decree enexcessive where a railroad engineer 35 years town the division terminus for all its trains opold was permanently disabled and confined erating into, through, or out of the city, and also to his bed.

locomotives, cars, equipment, trainmen, condueIn Yurkonis v. Railway (D. C.) 213 Fed. which are to be used and such officials as are

tors, brakemen, crews, and other employés 537, it was held that $36,000 was not exces- necessary in such division terminus or on trains, sive damages for injuries causing loss of traffic of an extraordinary or unusual nature sight to a coal miner 50 years old.

being excepted, is not erroneous as undertaking

to fix the character of the company's train In Zibbell v. Southern Pac. Co., 160 Cal. schedules or system of running or changing 237, 116 Pac. 514, the Supreme Court of Cal- crews or engines, or the length of train runs, ifornia held that $70,000 was not excessive but undertakes substantially only to preserve compensation for the loss of one leg and the division terminus operations provided for in

the contract. both arms.

4. RAILROADS 57—DECREE-CONSTRUCTION In the case of Reeve v. Electric Co., 152

-UNCERTAINTY. Cal. 99, 92 Pac. 99, the Supreme Court of Cal Such decree not erroneous as being indefifornia sustained a verdict of $30,000 where inite or uncertain, for the railroad company the plaintiff was severely burned by an elec- might conform to it substantially by proper

effort. tric wire.

5. RAILROADS ww57–CONTRACTS-DECREE. In Railway Co. v. Waits, 164 S. W. 870,

Where the evidence showed that division the Texarkana court upheld a $35,000 ver- headquarters are where the superintendent's dict where a young lady lost both legs, one office, roundhouse, and division terminal are,

and that it includes the train dispatcher's ofat the ankle and one below the knee.

fice, the decree enjoining the railroad company The motion is overruled.

from ceasing to keep or maintain and from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on

TION.

removing or causing to be removed from the city, to the jurisdiction shall be determined during the superintendent and assistant superintendent the term at which they are filed if the business and dispatchers with their office forces was not of the court permit, and in view of rule 7 for erroneous, but properly prevented the company district and county courts (142 S. W. xvii), a defrom removing officials whose presence was inci- fendant waived its exclusive privilege to be sued dental to the maintenance of division headauar- in the federal court, where no bill of exception ters,

preserving the overruling of such plea was re6. RAILROADS 46 - CONTRACTS-ENFORCE- served, and the final judgment to which excepMENT.

tions were reserved purported to overrule the A contract by a railroad company to main- plea. tain its division headquarters at a particular 11. VENUE Ow22(1)—JURISDICTION-INJUNCtown entered into by a receiver of the property for a valuable consideration and complied with Rev. St. 1911, art. 1830, declares that no for many years may be specifically enforced by person who is an inhabitant of the state shall be injunction.

sued out of the county in which he has his domi7. RECEIVERS 142–CONTRACTS_LIABILITY cile. Section 4653 declares that a writ of inOF PURCHASER.

junction other than one to restrain proceedings Where after sale of railroad property by a

in another suit, etc., shall, if the party against receiver the purchaser delayed taking

possession whom it is granted be an inhabitant of the of the property leaving the receiver in posses- state, be returned to and tried in the district or sion, and the court in passing on a motion to de- county cour of the county in which such party lay delivery ordered that the property should be has his domicile. A suit for injunction to endelivered and received by the purchaser or his force compliance by a railroad company with assigns subject to and charged with the obliga a contract to establish and maintain division tions and liabilities contractual or resulting headquarters at a particular town, in which the from torts or otherwise incurred by the receiver, company and an individual who was a proper the receiver became the purchaser's agent, and party were joined as defendants, was instituted the railroad property was charged with his con

in the county of the individual defendant's domitracts, and a corporation subsequently organized cile instead of that of the company. Held to operate it was bound by a contract of the that, as the injunction was an ancillary proceedreceiver to establish division headquarters at a ing, the venue was correctly laid, and the com. particular town for a valuable consideration. pany was not entitled to assert a privilege to be 8. COURTS 489(10)–CONTRACTS-JURISDIC

sued in the county of its residence. TION OF COURT.

Appeal from District Court, Ellis County ; While a receiver appointed by the federal F. L. Hawkins, Judge. court had possession of railroad property and

Suit by the City of Ennis and others before a purchaser took possession, he contracted for a valuable consideration to establish di- against the Houston & Texas Central Railvision headquarters at a particular town. Or- road Company and others. From a decree ders on application by the purchaser to delay for plaintiffs, defendants appeal. Affirmed. taking possession of the property charged him with liability for the acts of the receiver, con J. L. Gammon, of Waxahachie, and J. T tractual or otherwise. The receivership was Garrison and Baker, Botts, Parker & Gar finally terminated by a complete settlement and wood, all of Houston, for appellants. Far: order discharring the receivership. The railroad company organized by the purchaser to rar & McRae, of Waxahachie, and Thomp operate the property for many years complied son, Knight, Baker & Harris, of Dallas, for with the contract made by the receiver. Held,

appellees. that the federal court which appointed the receiver did not have exclusive jurisdiction over a suit to enjoin the railroad company from re

RAINEY, C. J. This was a suit by tho moving division headquarters from the town in violation of the contract, for the receiver had city of Ennis and certain individuals, whe, long been discharged, and the controversy was as a committee of citizens of Ennis, brought not one germane to the case in which the receiv- against the Houston & Texas Central Rail. er was appointed; this being particularly true in view of the fact that the federal court itself road Company and certain of its officers to denied the railroad company's supplementary prevent the moving of its division superinbill praying for an injunction to restrain main- tendent's offices, train dispatchers, machine tenance in the state court of an action to enjoin shops, and roundhouse from Ennis to Mexia, the company from removing headquarters from and to enforce the observance of a certain the town. 9. RECEIVERS 142–FEDERAL COURTS-JU. contract made by Charles Dillingham on DeBISDICTION.

cember 6, 1890, then receiver of the Houston Under Acts 20th Leg. c. 24, providing for & Texas Central Railroad Company. The organization of railroad companies acquiring plaintiffs petition alleged proper allegations railroad property on receiver's sale, and declaring that no company availing itself of any such to declare said contract valid and to enforce privilege shall claim to be under the jurisdic- its validity. A temporary injunction was tion of the federal courts by reason of its pur- granted, from which there was no appeal. chase, a railroad company organized to operate railroad property purchased on sale by receiver

The defendants answered by the general is. appointed in the federal court cannot, having sue and specially that circumstances had accepted a charter pursuant to such limitations, arisen which rendered it advisable and prop. assert the jurisdiction of the federal court to determine the validity of a contract entered in- er for it to remove its “division headquarters" to by the receiver.

from Ennis to Mexia, another point on its 10. PLEADING Cw110_OBJECTIONS TO JURIS- main line, etc. A trial was had on its mer. DICTION-WAIVER.

its. All the defendants except the railroad Under Rev. St. 1911, arts. 1902, 1909, 1910, company and Costello were dismissed from respectively declaring, that the answer may include several pleas whether of law or fact, that the case, and the case was submitted to a pleas shall be filed in due order, and that pleas/jury, on which answers were returned and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
201 S.W.-17

judgment was rendered in favor of plain- , in full, and the railroad shortly thereafter more tiff's decreeing said contract to be valid and ed to Ennis, and ever since has maintained there enforceable and to be performed and a writ the various departments contemplated in the

negotiations and contract mentioned. of injunction be perpetuated, from which "During the entire time consumed by the nejudgment the railroad company and Costello gotiations mentioned, for months prior there perfected an appeal.

to, and for over two years thereafter, Dillingham remained in nominal custody of the rail

way property, Mr. Olcott not coming forward Conclusions of Fact.

and taking possession, as the various orders of We adopt and take from the brief of coun- for reasons of his own leaving the property in

the court contemplated that he would do, but sel of appellees as part of our conclusions of Mr. Dillingiam's custody. Under the decisions, fact and as throwing light thereon the fol- and especially under the decision in the case of lowing:

Dillingham, Receiver, v. Bath, 44 S. W. 595,

decided in the Court of Civil Appeals at Dal"In 1888 the old Houston & Texas Central las, the possession by Dillingham under such Railway Company was in the hands of Charles circumstances was, in legal effect, in the capacDillingham, as receiver. He had been appoint- ity of agent of the railroad company, rather ed in a suit in equity in the federal court at Galthan technically as receiver, and the railroad veston. In that suit a decree of foreclosure had company was responsible for his contracts upon been entered, and Dillingham, as master com- the ordinary principles of agency. missioner, had sold the railway property to one

"In 1893 Mr. Olcott and the present railroad F. P. Olcott, president of Central Trust Com- company, which meantime he had organized and pany, of New York. The sale bad been report, to which he had conveyed the railway propered and confirmed, and the execution of deed ty, became ready to take over actual operation and the delivery of deed and property to the of the railway lines and did so. By various acts purchaser had been ordered, but for reasons of it adopted and ratified the contract with the his own Mr. Olcott had not taken physical pos- people of Ennis, and for more than 20 years session of the railway properties, although the it continued to maintain in and near Ennis all receiver and the federal court were anxious of the railway departments agreed upon in the that he should take over the property in order location and maintenance contract. that the receivership might be terminated.

"In 1912 Mr. Scott became president of the "For purposes of operation the railway there- railroad company, and brought into its service tofore had been split into three general divi- some other new officials, and in 1913 a scheme sions. The middle division covered that por- was evolved for again moving the division headtion of the system between the cities of Hearne quarters, this time to the south, indeed to a and Corsicana. The northern division covered point south of its original location, viz. to Mes. that portion of the system north of Corsicana. ia, in Limestone county, Tex. To that end land It had been determined that the divisional ar was acquired of more than 250 acres in area, rangement was unsatisfactory, and as the se- 170 of which was intended to carry an immense lection of Corsicana for division terminus had water reservoir adequate for all the railroad's been tentative, and the physical properties own- requirements, the other 80-odd acres to be used ed by the railroad company at that point of for yards, divisional buildings, roundhouses, but nominal value, the managers determined to and, as we contend, railway shops. The buildcreate a new division point at Garrett, just ing of the yards was begun, a roundhouse was above the city of Ennis, and extend the middle built, divisional headquarters building was startdivision so that its territory would cover be- ed, and orders were given for the division sutween Hearne and Garrett. Inasmuch as the perintendent and his entire staff, including dinorthern division was under the administra- vision dispatchers, to move from Ennis to Mes. tion of the division superintendent in charge of ia. Incidentally further expenditures in keepthe middle division, the proposed plan of mov- ing up equipment, etc., in the Ennis shops was ing the northern terminus of the middle divi- discontinued in 1913. sion to a point further north than Corsicana "As soon as the people of Ennis learned of would have, in addition to its other advantages, the plans of the railroad, efforts were made to the effect of bringing the divisional administra- induce the railroad company to change its tion closer to the problems on the northern divi- plans and not to leave Ennis prostrate by carrysion.

ing out the removal scheme. Conferences were “The citizens of Ennis, learning of the plans had with the division superintendent at Ennis, of the railroad company, and realizing that to who was found to be quite obdurate. Indeed, locate a division point a few miles away from it was learned that he was personally highly Ennis would be harmful to them, got into touch gratified over the removal plans, and that he had with officials of the railroad, and, after protract- been actively advocating the removal, largely ed negotiations, reached an agreement with the on account of personal ill will on his part railroad people, in substance, to the effect that toward certain Ennis officials, growing out of the division headquarters, with its division su a controversy over the escape of some prisoners perintendents, division dispatchers, shops, round which the railroad company had caused to be houses, etc., would be located and maintained in arrested and confined in the city jail at Ennis. and near the city of Ennis if the city would “Getting no relief in this quarter, a committee furnish tract of land pointed out by the railroad of Ennis citizens next visited Mr. Scott, the people, perpetual water rights in the city's wa- president of the railroad company, and endear. ter reservoirs, and a bonus of $25,000 in money. ored to dissuade him from carrying out the

"The negotiations, though begun in 1889, con- removal plans. This visit likewise was without sumed quite a period of time, and did not even- result. Mr. Scott emphatically informed the tuate in a contract until December 6, 1990, at committee that the railroad company had de which time the city and citizens of Ennis con- cided to and intended immediately to move its veyed to Mr. Dillingham, acting for the rail- division superintendent and his assistants, its road company, the lands agreed on, the perpet- division dispatchers, and the clerical part of ual water rights agreed on, and gave him a division headquarters, and had acquired land note, executed by responsible makers, for the and commenced improvements, etc., to take care agreed bonus of $25,000, and the railroad peo- of the removed departments. He was pressed ple, acting through Mr. Dillingham, made con- to disclose his plans with reference to shops and tract, in consideration of the foregoing, to lo- roundhouses, but could be prevailed on to make cate and maintain in and near Ennis all of the no declaration other than at present he had railway establishments above referred to. 10 plans for removing or abandoning the En.

*The bonus note was shortly thereafter paid nis shops and roundhouses.

"The result of the conference of the commit- | able to their own order, and by them indorsed: tee with Mr. Scott was naturally disquieting to “Now, in consideration of the said premises, the committee and to the people of Ennis. They the said Charles Dillingham, as receiver of the had other warnings, more or less direct, to the Houston & Texas Central Railway, agrees, as effect that the railroad company planned even- such receiver, to establish headquarters of the tually the complete abandonment of Ennis, so i middle division of the Ilouston and Texas Cenfar as the departments covered by the old con- tral Railway at the town of Ennis, in Ellis tract were concerned. They were informed county, Tex., and to erect, construct, and mainabout the progress of work on the improvements tain on said tract of land hereinbefore menat Mexia. They learned of the construction of tioned adequate buildings and machine shops the new roundhouse at Mexia, and that it was and roundhouses, and supply the same with necbuilt according to a plan which made it capa-essary machinery, sufficient for the mainteble of enlargement in capacity to a point twice nance of such machine shops as may be necesthat of the roundhouse at Ennis. In the light sary and be required for the proper operation of all these evidences of a fixed purpose on the of the same, said roundhouse to contain at part of the railroad company to ignore the con- least 12 stalls for locomotives, and such machintract this suit was brought.”

ery to be placed in said machine shops as may When the contract for locating the divi- be requisite and necessary for the operation of

said division machine shops; it being undersion headquarters of the Houston & Texas stood that the said Dillingham is not required Central Railway Company was made on De- to expend for the construction of said roundcember 6, 1890, Charles Dillingham was re- house, machine shops and machinery a sum exceiver, regularly appointed by the United ceeding twenty-five thousand ($25,000) dollars.

“It is further understood that the machine States Circuit Court for the Eastern Dis- shop and roundhouse herein contracted to be trict of Texas, and so remained in charge of constructed shall be built on that part of block the railroad company until 1893, when he No. nine (9) herein before mentioned as having

been conveyed to the said Charles Dillingham, was duly discharged by said court. The con- receiver, or on that part of the I. D. Shepherd tract made by him with said city of Ennis survey not more than eight hundred (800) feet and its citizens is as follows:

north of the south line of said Shepherd sur"The State of Texas.

vey, and that all other improvements erected

on such portion of said Shepherd survey more “Whereas, on the 10th day of March, 1890, in than (800) feet from the south line thereof the suit of Nelson S. Easton and others against shall be ditched and drained in such way and the Houston & Texas Central Railway Com- manner sa that the water shall not flow in or pany and others, No. 198 equity, pending in the in the direction of said city reservoir. United States Circuit Court for the Eastern "It is further understood that the machine District of Texas, Hon. Don A. Pardee, judge shops and roundhouse shall be completed on or of said Circuit Court, made and entered of rec- before January 1, 1892. It is further underord an order authorizing, empowering, and di- stood that the office of the division superintendrecting Charles Dillingham, receiver, heretofore ent and the headquarters of the middle diviappointed in said cause, to erect the necessary sion of said railway shall be removed, as herebuildings for a roundhouse and machine shops, inbefore stipulated, on or before the 1st day of and supply the same with necessary and suffi- March, 1891. It is further understood that cient machinery necessary for division head- nothing herein contained is to prevent the diviquarters at some point between the towns of sion superintendent and other officers and emGarrett and Ennis, on its line of railway, and ployés of the said railway company from bavfurther to establish at said point the headquar- ing their business office within the limits of the ters of the middle division of said railway, on a city of Ennis. tract of land which had been tendered by the "Witness my hand this 6th day of December, citizens of Ennis for the location of said ma- | 1890.

[Signed] Chas. Dillingham, chine shops, roundhouse, and headquarters, pro “Receiver, Houston & Texas Central Ry." vided there should be tendered to said Charles Dillingham, as receiver, sufficient and satis

The contract was not signed by the city factory conveyances of at least eighty (80) of Ennis, nor by any of its officers or citizens, acres of land, and that there should be also but was accepted by the railway company, made a good and sufficient guarantee for the and at once acted upon, and its terms compayment to him, the said Charles Dillingham, receiver, of the sum of twenty-five thousand plied with both by the railway company and ($25,000.00) dollars, and there should be also the city of Ennis, and has been so done ever made a contract for the free supply of water since until interrupted by this suit. for the use of said railway; and “Whereas, there has been conveyed to the

[1, 2] The first assignment of error and said Charles Dillingham, on the part of cer- proposition presented by appellant are: tain citizens of Ennis, the following described “The court erred in not entering a judgment tracts of land_situated in the county of Ellis in favor of the defendant, because the undisputand state of Texas, viz.: One tract contain- ed evidence shows that the only contract which ing seventy-eight and four-tenths (78.4) acres, the plaintiffs have to rely on in this suit is the being a part of the I. D. Shepherd survey, said written contract signed by Chas. Dillingham, tract fronting on the right of way of the Hous receiver of the Houston & Texas Central Railton and Texas Central Railway 3,125 feet, and way Company, dated December 6, 1890, a copy extending back 1,083 feet, and also lots Nos. of which is attached as Exhibit B to the third two (2), three (3), and four (4) of block No. amended original petition, and the undisputed nine (9), according to the maps of the city of evidence further shows that this contract did not Ennis made by Theodore Kosse, and also the bind the receiver to keep the facilities referred perpetual free use of the water privileges of the to in it at Ennis for any length of time, that reservoir of the city of Ennis, all of which will the receiver was not authorized to contract to more fully appear by reference to the deed of keep them there, and the undisputed evidence A. H. Dunkerly to me of even date herewith. shows that this contract was fully discharged by And there has also been executed and delivered the receiver, and that there is no obligation on to the said Charles Dillingham a joint and sev the part of this defendant growing out of said eral promissory note of J. Baldridge, D. F. contract to keep said facilities at Ennis." Singleton, P. Freeman, L. Cerf, T. D. Turner, Proposition: "By the contract of December Mark Latimer, J. C. Loggins and J. Blakey for 6, 1890, the receiver agreed to move the headtwenty-five thousand ($25,000.00) dollars, pay- | quarters and the machine shops and roundhouse

of the middle division of the Houston & Texas, maintenance of the division headquarters to Central Railway Company from Corsicana, and remain at Ennis until public interest reestablish them at Ennis, but did not agree to quires a change. We also are of the opinion keep them there forever or never to them, and the establishment of them at Ennis that the proper judgment has been reached. by the receiver, and the keeping of them there In support of our contention that the con. by him first, and then by appellant, for more tract should be enforced we cite the followthan 23 years, constituted full compliance with the contract, and the company was not obligated ing authorities: Tex. Rev. Stats. art. 6123; to keep them there longer.”

Acts 34th Leg. c. 20, p. 35; Railway Co. v. In the contract for moving the division Robards, 60 Tex. 545, 48 Am. Rep. 268; Railheadquarters from Corsicana to Ennis there way Co. v. Dawson, 62 Tex. 260; Railway Co. was no specified time mentioned for them to v. Malloy, 61 Tex. 607; Macdonell v. Rail. remain, nor did the parties stipulate specifi- way Co., 60 Tex. 590; Williams v. Railway cally that it should remain forever, but said Co., 82 Tex. 553, 18 S. W. 206; Tyler v. Railcontract must be construed in conformity way Co., 99 Tex. 491, 91 S. W. 1, 13 Ann. with the law of the land. In construing the Cas. 911; Railway Co. v. Colburn, 90 Tex. contract under consideration the circum- 231, 38 S. W. 153; Railway Co. v. Anderson, stances under which it was made and the 106 Tex. 60, 156 S. W. 499; Railway Co. v. purpose and object thereof are not inconsist- Martin, 38 Tex. Civ. App. 379, 86 S. W. 25; ent with the plain import of the language Railway Co. v. Crandell, 75 Ark. 89, 86 S. W. used. There is no ambiguity in the language 855, 112 Am. St. Rep. 42; Railway Co. v. Railused in the contract. It for a valuable con- way Co., 199 U. S. 160, 26 Sup. Ct. 19, 50 L. sideration agreed

Ed. 134; Elec. Co. v. Glen Park Co., 155 S. "to establish headquarters of the middle divi- W. 969; Child v. Railway Co., 213 Mass. 91, sion of the Houston & Texas Central Railway 99 N. E. 957, 48 L. R. A. (N. S.) 378; Taylor Company at the town of Ennis, in Ellis county, v. Railway Co., 54 Fla. 635, 45 South. 574, Tex., and to erect, construct, and maintain 16 'L. R. A. (N. 'S.) 307, 127 Am. St. Rep. 155,

* adequate buildings and machine shops and roundhouses and supply the same with nec-14 Ann. Cas. 472; Railway Co. v. Camp, 130 essary machinery sufficient for the maintenance Ga. 1, 60 S. E. 177, 15 L. R. A. (N. S.) 594, of such machine shops as may be necessary and 124 Am. St. Rep. 151, 14 Ann. Cas. 439. be required for the proper operation of the same.'

The foregoing authorities, especially those The language imports a continuous con

by our appellate courts, sustain the principle tract, and, having been observed by the re

that contracts made by railroad companies ceiver and the railway company for over

as herein in controversy are subject to en. 20 years, it cannot now be terminated by the forcement by the courts, and cannot be abrosaid company without some legal excuse for gated unless the railroad companies show it so doing; that is, it must show by clear and is demanded by the interest of the public in satisfactory evidence that it could not per

discharging their duties to the public. This form the duties owing to the public consist- principle is clearly announced in the case of ent with proper discharge by their reasona

Railway Co. v. Camp, by the Supreme Court ble effort. The railroad company undertook

of Georgia, 130 Ga. 1, 60 S. E. 177, to be to show such a condition existed, but there found in 15 L. R. A. (N. S.) 594, 124 Am. St. was controverting evidence upon which the

Rep. 151, 14 Ann. Cas. 439, in discussing the jury found adversely to appellant.

implied limitation imposed by law upon conThis brings us to the conclusion that under tracts for maintenance of tracks, stations, the facts the contract is binding and en- etc., wherein it is said: forceable. Our own statute of 1911 (article ent case, it cannot be held that the contract her

"In applying what has been said to the pres6423) is persuasive in upholding such con- tween the railroad company and the plaintiff tracts as this. It provides that:

was void per se, for the company had the right “Every railroad company chartered by this to make a contract with the plaintiff to locate a state, or owning or operating any line of rail- station at a given point, so long as the location way within this state, shall keep and maintain of the station did not interfere with the proper permanently its general offices within the state discharge of the duties resting upon the compaof Texas at the place named in its charter for ny as a quasi public corporation; but the plainthe locating of its general offices; and, if no

tiff was charged with notice of the character certain place is named in its charter where its of the person he was contracting with, and of general offices shall be located and maintained, the duties which that person owed to the pubthen said railroad comany shall keep and main: lic, and also, in reference to the subject matter tain its general offices at such place within this of the contract, that it was connected intimately state where it shall have contracted, or agreed, the defendant owed the public, and therefore it

and directly with the discharge of the duties or shall hereafter contract or agree, to locate became a part of the contract' between the para its general offices for a valuable consideration.

And such railroads shall keep and ties that the maintenance of the station at the maintain their machine shops and roundhouses, point was limited, not by the time specified in or either, at such place or places as they may the contract, but to that time, and to that time have contracted to keep them for a valuable con- only, when, consistent with the discharge of the sideration received," etc.

public duties of the company, the station could

be maintained in the manner provided for in the Appellant contends that this statute has no agreement. The petition therefore set forth a application, but, however that is, the city of cause of action. There is nothing alleged to inEnnis having paid a valuable consideration, the railroad company cannot comply with its

dicate that the conditions are so changed that it evidently expected for the location and contract, and at the same time discharge all

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