Rose v. San Antonio & Mexican Gulp Railroad , 31 Tex. 49 ( 1868 )

Morrill, O. J.

— The question presented for our decision in this case is, whether an action can be sustained on the instrument given by appellant, as follows:

“For value received, I promise to pay to the order of the San Antonio and Mexican Gulf Railroad Company the sum of $ 1,000, when said company or their assigns shall have constructed said road from the city of Lavaca to the town of Victoria, and kept the same in operation, conveying passengers and freight between said points, on the period of one year: this 7th day of March, A. D. 1860.”

P. R. Rose.

It is admitted or proved that the conditions upon the happening of which the note became payable have taken place, and the defenses set up to paying the same are—

1. "Want of mutuality in the contract."

2. The building said road does not form a valuable consideration for said note.

3. The act of limitation.

4. Reconvention.

In addition to the defense set up in pleadings, the briefs of counsel have dwelt somewhat on the illegality of the instrument, alleging that it is contrary to public policy. Concerning this objection, if there is any one subject upon which there has been unanimity in the legislation of the state, not for one session only, but during our existence as a state, it is the mating railroads from any point to any other point in the state, and the state has expressed its approval of the erection of said roads by mating liberal donations to all. But as this objection is not raised by the pleadings, we take up, in the order stated, the several objections, and first the want of mutuality of the instrument. It is pronounced that the defense intended is, that inasmuch as the railroad company is under no obligations to make the road, therefore the maker of the instrument should not be bound to pay when the same is made. This subject has been very ably and lucidly discussed by Parsons, in his Work on Contracts, (vol. 1, 375,) as follows:

“ Here it is said that the party mating the promise is bound, while the other party is at liberty to do any thing or nothing. But this is a mistake. The party- mating the promise is bound to nothing until the promisee, within a reasonable time, engages to do, or else does or begins to do, the thing which is the beginning of the first promise; until such engagement or such doing, the promisor may withdraw his promise, because there is no mutuality, and therefore no consideration for it.- But after an engagement on the part of the promisee, which is sufficient to bind him, then the promisor is bound also, because there is now a promise for a promise, with entire mutuality of obligation. But if, without any promise whatever, the promisee does the thing required, then the promisor is bound on another ground. The thing done is itself a sufficient and completed consideration, and the original promise to-do something if the other party would do something is a continuing promise, until that other party does the thing required of him.”

The doctrine thus laid down by Professor Parsons is fortified by authority quoted in a note to the above, that “the binding obligation of contracts or promises to do something, provided, or on condition, or when the other party shall do some other thing, is well recognized.” As the answer does not state that Rose either withdrew or attempted to withdraw the promise till after the promisees had complied with the conditions of payment of the same, the demurrer to the same was properly sustained.

The second defense is want of consideration. The authority already cited is deemed amply sufficient in reply to this defense. Indeed it may be stated as among the elementary principles and maxims of law, “that if a benefit accrues to him who makes the promise, or if any loss or disadvantage accrues to him to whom it is made, at the request or on motion of the promisor, although without benefit to the promisor, in either case the consideration is sufficient to sustain assumpsit.”

In the construction of a, railroad there was not only a benefit to the promisor, but to the community at large, to say nothing of the pecuniary loss and expense to him by whom the road was made.

In relation to the defense set up by the act of limitation, it is nowhere contended that the road was made more than four, years before suit was brought, and therefore the defense is groundless.

The only remaining defense is, that the judge erred in excluding the deposition of Mrs. Lewis. "What the deposition of Mrs. Lewis was does not appear in such a way as would authorize the court to. take any notice of the same; but the answer of the defendant is demurrable, and even if the deposition of Mrs..Lewis had substantiated the entire defense, it would have been of no avail. The answer does not allege that the plaintiffs ever became liable to pay for the timber cut on defendant’s land, but that “ certain persons, W. J. Barry, - Greenwood, and others, acting under and by authority, made entry into the timbered lands of defendant, and for the use and benefit of said road cut down and carried away two thousand ties, worth §1,000.” "Who the said Barry and Greenwood and others were, or by whose authority they committed a trespass upon the land of defendant, is not made known; and even if it had been properly pleaded that this trespass had been committed by authority of the railroad company, as the damages were unliquidated or uncertain, it might be considered very doubtful if it would lie in this case. As the plqa is presented it forms no defense. We see no error in the judgment, and the same is

Affirmed.