Williams v. D.C. S.W. Ry. Co. , 43 Tex. Civ. App. 609 ( 1906 )

Appellee brought this suit against appellants upon a written contract by the terms of which the latter promised to pay $250.50, upon condition that a certain railroad should be built to the city of Cleburne within a specified time, and locate its depot "east of the public square in Cleburne, not more than three blocks east of the Santa Fe passenger depot, and within two blocks south or three blocks north of Henderson street." Appellants admitted signing the contract, and sought to avoid liability upon the ground of fraud, alleging that they signed the contract relying upon certain representations to the effect that the depot would be located on a particular lot within the territory prescribed in the contract.

After hearing the testimony offered in support of the defense referred to, the trial court instructed a verdict for the plaintiff, and its action in so doing is assigned as error. The trial court was correct. There was no proof tending to show that any mistake was made in writing the contract, or that appellants were deceived as to its terms. Such being the case, it is not permissible to vary the terms of the written contract by showing an agreement to locate the depot on a particular lot, when by the terms of the written instrument it was permissible to locate it elsewhere. (Wooters v. International G. N. Ry. Co., 54 Tex. 294; Faires v. Cockerell, 29 S.W. Rep., 672 and 88 Tex. 428.) The two cases just cited are quite similar to the one in hand. It is true that in Faires v. Cockerell the Supreme Court reversed the Court of Civil Appeals, but not on the question now under consideration. Upon that point the Supreme Court sustained the decision of the Court of Civil Appeals.

No error has been shown and the judgment is affirmed.

Affirmed.