This court held that $30,000 was not ex-houses or either at such place or places as it cessive damages for a boy whose face and hands were mutilated and who was rendered almost blind by an explosion. Waters-Pierce Co. v. Snell, 47 Tex. Civ. App. 413, 106 S.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

7. RECEIVERS

OF PURCHASER.

142-CONTRACTS-LIABILITY

Where after sale of railroad property by a receiver the purchaser delayed taking possession of the property leaving the receiver in possession, and the court in passing on a motion to delay delivery ordered that the property should be delivered and received by the purchaser or his assigns subject to and charged with the obligations and liabilities contractual or resulting from torts or otherwise incurred by the receiver, the receiver became the purchaser's agent, and the railroad property was charged with his contracts, and a corporation subsequently organized to operate it was bound by a contract of the receiver to establish division headquarters at a particular town for a valuable consideration. 8. COURTS 489(10)-CONTRACTS-JURISDICTION OF COURT.

to the jurisdiction shall be determined during the term at which they are filed if the business of the court permit, and in view of rule 7 for district and county courts (142 S. W. xvii), a defendant waived its exclusive privilege to be sued in the federal court, where no bill of exception preserving the overruling of such plea was reserved, and the final judgment to which exceptions were reserved purported to overrule the plea.

11. VENUE 22(1) JURISDICTION-INJUNC

TION.

Rev. St. 1911, art. 1830, declares that no person who is an inhabitant of the state shall be sued out of the county in which he has his domicile. Section 4653 declares that a writ of injunction other than one to restrain proceedings in another suit, etc., shall, if the party against whom it is granted be an inhabitant of the state, be returned to and tried in the district or county court of the county in which such party A suit for injunction to enhas his domicile. force compliance by a railroad company with a contract to establish and maintain division headquarters at a particular town, in which the company and an individual who was a proper party were joined as defendants, was instituted in the county of the individual defendant's domicile instead of that of the company. that, as the injunction was an ancillary proceeding, the venue was correctly laid, and the company was not entitled to assert a privilege to be sued in the county of its residence.

Held

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

Suit by the City of Ennis and others against the Houston & Texas Central Railroad Company and others. From a decree for plaintiffs, defendants appeal. Affirmed.

J. L. Gammon, of Waxahachie, and J. T Garrison and Baker, Botts, Parker & Gar wood, all of Houston, for appellants. Far rar & McRae, of Waxahachie, and Thomp son, Knight, Baker & Harris, of Dallas, for appellees.

While a receiver appointed by the federal court had possession of railroad property and before a purchaser took possession, he contracted for a valuable consideration to establish division headquarters at a particular town. Orders on application by the purchaser to delay taking possession of the property charged him with liability for the acts of the receiver, contractual or otherwise. The receivership was finally terminated by a complete settlement and order discharring the receivership. The railroad company organized by the purchaser to operate the property for many years complied with the contract made by the receiver. Held, that the federal court which appointed the receiver did not have exclusive jurisdiction over a suit to enjoin the railroad company from reRAINEY, 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, who, 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 9. RECEIVERS 142-FEDERAL COURTS-JU-contract made by Charles Dillingham on De

the town.

RISDICTION.

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 The defendants answered by the general is railroad property purchased on sale by receiver 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.

10. PLEADING 110-OBJECTIONS TO JURISDICTION-WAIVER.

Under Rev. St. 1911, arts. 1902, 1909, 1910, respectively declaring that the answer may include several pleas whether of law or fact, that pleas shall be filed in due order, and that pleas

from Ennis to Mexia, another point on its main line, etc. A trial was had on its merits. All the defendants except the railroad company and Costello were dismissed from the case, and the case was submitted to a jury, on which answers were returned and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the various departments contemplated in the negotiations and contract mentioned.

judgment was rendered in favor of plain- | in full, and the railroad shortly thereafter movtiff'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 of injunction be perpetuated, from which judgment the railroad company and Costello perfected an appeal.

Conclusions of Fact.

We adopt and take from the brief of counsel of appellees as part of our conclusions of fact and as throwing light thereon the following:

"During the entire time consumed by the negotiations mentioned, for months prior thereto, and for over two years thereafter, Dillingham remained in nominal custody of the railway property, Mr. Olcott not coming forward and taking possession, as the various orders of the court contemplated that he would do, but for reasons of his own leaving the property in Mr. Dillingham's custody. Under the decisions. and especially under the decision in the case of 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 capac Dillingham, 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 Gal- than 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 had 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 Mexthat 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 Mextion of the division superintendent in charge of ia. Incidentally further expenditures in keepthe middle division, the proposed plan of moving 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 would have, in addition to its other advantages, the effect of bringing the divisional administration closer to the problems on the northern division. "The citizens of Ennis, learning of the plans of the railroad company, and realizing that to locate a division point a few miles away from Ennis would be harmful to them, got into touch with officials of the railroad, and, after protracted negotiations, reached an agreement with the railroad people, in substance, to the effect that the division headquarters, with its division superintendents, division dispatchers, shops, roundhouses, etc., would be located and maintained in and near the city of Ennis if the city would furnish tract of land pointed out by the railroad people, perpetual water rights in the city's water reservoirs, and a bonus of $25,000 in money. "The negotiations, though begun in 1889, consumed quite a period of time, and did not eventuate in a contract until December 6, 1890, at which time the city and citizens of Ennis conveyed to Mr. Dillingham, acting for the railroad company, the lands agreed on, the perpetual water rights agreed on, and gave him a note, executed by responsible makers, for the agreed bonus of $25,000, and the railroad people, acting through Mr. Dillingham, made contract, in consideration of the foregoing, to locate and maintain in and near Ennis all of the railway establishments above referred to.

"The bonus note was shortly thereafter paid

"As soon as the people of Ennis learned of the plans of the railroad, efforts were made to induce the railroad company to change its plans and not to leave Ennis prostrate by carrying out the removal scheme. Conferences were had with the division superintendent at Ennis, who was found to be quite obdurate. Indeed, it was learned that he was personally highly gratified over the removal plans, and that he had been actively advocating the removal, largely on account of personal ill will on his part toward certain Ennis officials, growing out of a controversy over the escape of some prisoners which the railroad company had caused to be arrested and confined in the city jail at Ennis.

"Getting no relief in this quarter, a committee of Ennis citizens next visited Mr. Scott, the president of the railroad company, and endeavored to dissuade him from carrying out the removal plans. This visit likewise was without result. Mr. Scott emphatically informed the committee that the railroad company had decided to and intended immediately to move its division superintendent and his assistants, its division dispatchers, and the clerical part of division headquarters, and had acquired land and commenced improvements, etc., to take care of the removed departments. He was pressed to disclose his plans with reference to shops and roundhouses, but could be prevailed on to make no declaration other than at present he had no plans for removing or abandoning the Ennis shops and roundhouses.

"The result of the conference of the committee with Mr. Scott was naturally disquieting to the committee and to the people of Ennis. They had other warnings, more or less direct, to the effect that the railroad company planned eventually the complete abandonment of Ennis, so far as the departments covered by the old contract were concerned. They were informed about the progress of work on the improvements at Mexia. They learned of the construction of the new roundhouse at Mexia, and that it was built according to a plan which made it capa-essary machinery, sufficient for the mainteble of enlargement in capacity to a point twice that of the roundhouse at Ennis. In the light of all these evidences of a fixed purpose on the part of the railroad company to ignore the contract this suit was brought."

When the contract for locating the division headquarters of the Houston & Texas Central Railway Company was made on December 6, 1890, Charles Dillingham was receiver, regularly appointed by the United States Circuit Court for the Eastern District of Texas, and so remained in charge of the railroad company until 1893, when he was duly discharged by said court. The contract made by him with said city of Ennis and its citizens is as follows: "The State of Texas.

able to their own order, and by them indorsed: "Now, in consideration of the said premises, the said Charles Dillingham, as receiver of the Houston & Texas Central Railway, agrees, as such receiver, to establish headquarters of the middle division of the Houston and Texas Central Railway at the town of Ennis, in Ellis county, Tex., and to erect, construct, and maintain on said tract of land hereinbefore mentioned adequate buildings and machine shops and roundhouses, and supply the same with necnance of such machine shops as may be necessary and be required for the proper operation of the same, said roundhouse to contain at least 12 stalls for locomotives, and such machinery to be placed in said machine shops as may be requisite and necessary for the operation of said division machine shops; it being understood that the said Dillingham is not required to expend for the construction of said roundhouse, machine shops and machinery a sum exceeding twenty-five thousand ($25,000) dollars. "It is further understood that the machine shop and roundhouse herein contracted to be constructed shall be built on that part of block No. nine (9) hereinbefore mentioned as having been conveyed to the said Charles Dillingham, receiver, or on that part of the I. D. Shepherd survey not more than eight hundred (800) feet north of the south line of said Shepherd survey, and that all other improvements erected on such portion of said Shepherd survey more than (800) feet from the south line thereof shall be ditched and drained in such way and manner so that the water shall not flow in or in the direction of said city reservoir.

"Whereas, on the 10th day of March, 1890, in the suit of Nelson S. Easton and others against the Houston & Texas Central Railway Company and others. No. 198 equity, pending in the 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 havfurther 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 citizens of Ennis for the location of said machine shops, roundhouse, and headquarters, provided there should be tendered to said Charles Dillingham, as receiver, sufficient and satisfactory conveyances of at least eighty (80) acres of land, and that there should be also made a good and sufficient guarantee for the payment to him, the said Charles Dillingham, receiver, of the sum of twenty-five thousand ($25,000.00) dollars, and there should be also made a contract for the free supply of water for the use of said railway; and

Witness my hand this 6th day of December, 1890. [Signed] Chas. Dillingham, "Receiver, Houston & Texas Central Ry." The contract was not signed by the city of Ennis, nor by any of its officers or citizens, but was accepted by the railway company, and at once acted upon, and its terms complied with both by the railway company and the city of Ennis, and has been so done ever since until interrupted by this suit.

[1, 2] The first assignment of error and proposition presented by appellant are:

"The court erred in not entering a judgment in favor of the defendant, because the undisputed evidence shows that the only contract which the plaintiffs have to rely on in this suit is the written contract signed by Chas. Dillingham, receiver of the Houston & Texas Central Railway Company, dated December 6, 1890, a copy of which is attached as Exhibit B to the third amended original petition, and the undisputed evidence further shows that this contract did not bind the receiver to keep the facilities referred to in it at Ennis for any length of time, that the receiver was not authorized to contract to keep them there, and the undisputed evidence shows that this contract was fully discharged by the receiver, and that there is no obligation on the part of this defendant growing out of said contract to keep said facilities at Ennis."

"Whereas, there has been conveyed to the said Charles Dillingham, on the part of certain citizens of Ennis, the following described tracts of land situated in the county of Ellis and state of Texas, viz.: One tract containing seventy-eight and four-tenths (78.4) acres, being a part of the I. D. Shepherd survey, said tract fronting on the right of way of the Houston and Texas Central Railway 3,125 feet, and extending back 1,083 feet, and also lots Nos. two (2), three (3), and four (4) of block No. nine (9), according to the maps of the city of Ennis made by Theodore Kosse, and also the perpetual free use of the water privileges of the reservoir of the city of Ennis, all of which will more fully appear by reference to the deed of A. H. Dunkerly to me of even date herewith. And there has also been executed and delivered to the said Charles Dillingham a joint and several promissory note of J. Baldridge, D. F. 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 head

of the middle division of the Houston & Texas Central Railway Company from Corsicana, and establish them at Ennis, but did not agree to keep them there forever or never to remove them, and the establishment of them at Ennis by the receiver, and the keeping of them there by him first, and then by appellant, for more than 23 years, constituted full compliance with the contract, and the company was not obligated to keep them there longer."

maintenance of the division headquarters to remain at Ennis until public interest requires a change. We also are of the opinion that the proper judgment has been reached. In support of our contention that the contract should be enforced we cite the following authorities: Tex. Rev. Stats. art. 6423; 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, 64 Tex. 607; Macdonell v. Railremain, 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 used. There is no ambiguity in the language used in the contract. It for a valuable consideration agreed

Railway Co. v. Crandell, 75 Ark. 89, 86 S. W. 855, 112 Am. St. Rep. 42; Railway Co. v. Railway Co., 199 U. S. 160, 26 Sup. Ct. 19, 50 L. 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 necessary machinery sufficient for the maintenance of such machine shops as may be necessary and be required for the proper operation of the same.'

*

14 Ann. Cas. 472; Railway Co. v. Camp, 130 Ga. 1, 60 S. E. 177, 15 L. R. A. (N. S.) 594, 124 Am. St. Rep. 151, 14 Ann. Cas. 439.

The foregoing authorities, especially those by our appellate courts, sustain the principle that contracts made by railroad companies as herein in controversy are subject to enforcement by the courts, and cannot be abrogated unless the railroad companies show it is demanded by the interest of the public in discharging their duties to the public. This

The language imports a continuous contract, and, having been observed by the receiver and the railway company for over 20 years, it cannot now be terminated by the said company without some legal excuse for so doing; that is, it must show by clear and satisfactory evidence that it could not perform the duties owing to the public consist-principle is clearly announced in the case of ent with proper discharge by their reasonable effort. The railroad company undertook to show such a condition existed, but there was controverting evidence upon which the jury found adversely to appellant.

This brings us to the conclusion that under the facts the contract is binding and enforceable. Our own statute of 1911 (article 6423) is persuasive in upholding such contracts as this. It provides that:

"Every railroad company chartered by this state, or owning or operating any line of railway within this state, shall keep and maintain permanently its general offices within the state of Texas at the place named in its charter for the locating of its general offices; and, if no certain place is named in its charter where its general offices shall be located and maintained, then said railroad comany shall keep and main tain its general offices at such place within this state where it shall have contracted, or agreed, or shall hereafter contract or agree, to locate its general offices for a valuable consideration. And such railroads shall keep and maintain their machine shops and roundhouses, or either, at such place or places as they may have contracted to keep them for a valuable consideration received," etc.

Appellant contends that this statute has no application, but, however that is, the city of Ennis having paid a valuable consideration, it evidently expected for the location and

Railway Co. v. Camp, by the Supreme Court of Georgia, 130 Ga. 1, 60 S. E. 177, to be

found in 15 L. R. A. (N. S.) 594, 124 Am. St. Rep. 151, 14 Ann. Cas. 439, in discussing the implied limitation imposed by law upon contracts for maintenance of tracks, stations, etc., wherein it is said:

ent case, it cannot be held that the contract be "In applying what has been said to the prestween the railroad company and the plaintiff was void per se, for the company had the right to make a contract with the plaintiff to locate a station at a given point, so long as the location of the station did not interfere with the proper discharge of the duties resting upon the company as a quasi public corporation; but the plaintiff was charged with notice of the character of the person he was contracting with, and of the duties which that person owed to the public, and also, in reference to the subject-matter of the contract, that it was connected intimately and directly with the discharge of the duties the defendant owed the public, and therefore it became a part of the contract between the parties that the maintenance of the station at the point was limited, not by the time specified in the contract, but to that time, and to that time only, when, consistent with the discharge of the public duties of the company, the station could be maintained in the manner provided for in the agreement. The petition therefore set forth a cause of action. There is nothing alleged to indicate that the conditions are so changed that the railroad company cannot comply with its contract, and at the same time discharge all