55 Tex. 176 | Tex. | 1881
We will consider, first, the appellant’s second assignment of error, that the court erred in overruling the demurrer to plaintiff’s petition. The suit is not brought to rescind the contract which was made, for, notwithstanding the petition prays for cancellation of the deed, it prays that the same right of way conveyed by it to defendant be confirmed by a decree condemning the said land to the defendant’s use and benefit. A condemnation of land to a railway company’s right of way, over and through the land, by a decree of court, vests the same right as that which the deed contemplated by its terms and legal effect. The relief sought by the petition is for the damages which are alleged to have re-
As the plaintiff does not sue for a rescission of the contract, and, on the contrary, virtually asks that it be confirmed as to the conveyance which he has made, but seeks for damages, by reason of the facts stated in his petition, against the defendant, it is essential, to entitle him to a recovery, that he shall show that he has contracted with such an- agent of the defendant, so as that the acts and declarations done and made by him are binding upon the defendant; or, in other words, whether the principal has expressly or impliedly authorized the agent to make said representations. It is also essential that the facts alleged as the basis for damages shall be such as will entitle the plaintiff to the damages claimed for the misrepresentations complained of.
The plaintiff alleges “ that, on or about the-day of -, 1872, defendant was engaged in constructing its railway through the county of Collin, and were desirous to construct their road over and across plaintiff’s said tract of land. That plaintiff greatly desired that defendant would establish and erect on the fine of their said railway a depot within a distance of one and one-half miles of the town of Mantua, and that plaintiff, in pursuance of said desire, proposed to one Cummins, on the -day of-, 1872, who was at that time the agent of defendant for the purpose of obtaining the right of way for their said railway, that if defendant would establish and erect a depot on the line of their said railway within a distance of one and one-half miles of said town
The petition alleged that said agent agreed to, and accepted, said proposition, “and assured him (plaintiff) that if he would make said deed to defendant, that defendant would establish and erect a depot within one and a quarter miles of the said town of Mantua.” That the plaintiff, relying on the assurances of defendant’s said agent that defendant would establish said depot as aforesaid, did, on or about the 16th day of April, 1872, make and deliver a deed to said agent for the defendant to the right of way through his said tract of land.
The petition further alleges that the aforesaid representations of the defendant’s agent were fraudulently made, with a view to induce plaintiff to make the said deed; that he placed full trust and confidence in their truth, and believed that said agent had full authority to make them, and that the defendant would ratify the agreement between the plaintiff and said Cummins, That without said representations, so made, he would not have made the deed to the right of way.
The averments of the petition, just stated, represent the transaction to which they relate to have been with an agent of the defendant. His authority is defined in the petition to be for a single purpose, which was that of obtaining the right of way for the defendant’s railway. His authority to bind his principal was limited to the particular business within the scope of his peculiar agency, and the plaintiff in his petition defined the scope and limit of it. Such an authority as that ascribed to the agent imports the exercise by him of the necessary and usual powers, in the ordinary course of business, to thus procure the right of way for a railway through the lands of others. “The authority given under a general agency embraces, the appropriate means to accomplish.
But the rule which thus confers by implication such incidental power, limits the delegated power to the line which .it thus draws. That which is not necessary, proper, nor usual, as incidents to the performance of the acts authorized to be done under the general power, is in excess of and beyond the power delegated by the principal to the agent. Thus, “anagent, authorized to receive payment, has not an unlimited authority to receive it in any mode which he may choose; but he is ordinarily deemed entrusted with the power to receive it in money only. An agent employed to receive payment is not, unless some special authority is given to him, clothed with authority to commute the debt for another thing; or to compound the debt; or to release it upon a composition; or to pledge a note received for the debt, or the money when received; or to submit the debt.or demand to arbitration.” Story on Agency, § 99.
As a matter of law, it does not appear what particular acts of such an agent as Cummins was alleged to have been would have been usual, necessary or proper, in the ordinary course of that business, of the procurement of the right of way; but as a matter of law, it does appear that the establishment and erection of depots by railway companies is a separate and distinct kind of business or transaction, and different in its nature from contracts for the right of way. An agent clothed with the bare authority to procure rights of way would not have, as connected with or incidental to such a power, the right to locate and designate for his principal the depotsalong the line of his road. Such an authority would be foreign to, and not within the scope of, his agency, nor would he be
“To procure a right of way ” would seem to involve the idea of authority to solicit and obtain such right from the proprietors of the soil, in the modes that are customary and usual to the acquisition of property of like character, such as would pertain to obtaining other like easements, viz., by purchase and sale for a pecuniary equivalent; or else, where the right which is solicited is one of mutual advantage to both parties, .by gift or donation. But in the absence of averment of other authority or greater power than would be incident to the grant of a mere naked power to an agent to procure for the principal such a right or such an estate, it would not be inferred that the agent was empowered thereby to stipulate for other acts to be done by the principal as a consideration for the grant of the right of way, than to pay an equivalent for the same, or else to receive the same on less onerous terms.
The converse of this proposition would be to invest the agent with the authority to offer as an inducement for making a contract thus to procure the right, the obligation of the principal to surrender as an equivalent any right or power which it possessed, connected with the building or the operation of its road, according to the judgment or discretion of the agent. The right given to an agent, holding himself out to the world as such, to acquire property in lands, or rights therein like this, does not import, without a further delegation of specific authority, the right to transfer and thereby absorb the rights of his principal in other property, or to the performance of acts to be designated by the agent.
The cases which illustrate the application of the principle hmiting the authority of a general agent are very
This, then, being Hke an action of deceit, as it would be termed at common law, and not to rescind the contract, the plaintiff, to maintain it, for the breach of its terms, must rely upon the binding obligation which the alleged promise of Cummins imposed upon the defendant. It is laid down that, “to found an action of deceit, the fraud must be a personal one on the part of the person making the representation, or some fraud which another person has impliedly authorized him to be guilty of. An action of deceit cannot be brought against a principal for the fraudulent representations of his agent, unless he has impliedly authorized him to make the representations. An incorporated company cannot, therefore, in its corporate capacity, be called upon to answer in an action of deceit for false representations made by its directors, unless they have authorized the representations. The company cannot be sued as wrongdoers by imputing to them the misconduct of those whom they have employed. An action of deceit may be maintained against the directors personally, but not against the company.” Bump on Frauds, 326.
There is no other fraud charged in the petition on which to found the action for damages, except the representations of Cummins. Whilst the plaintiff alleges, it is true, that the deed was prepared by Cummins, and the real inducements and stipulations were fraudulently omitted from its recitals, yet he does not allege that any imposition was practiced upon him to conceal from him
The deed, then, not being invalid for fraud in its execution and delivery, it must be deemed to speak the real intent of the plaintiff as therein recited, for the purposes of a conveyance of the right; nor will parol evidence be allowed to contradict or vary it, so as to impugn or affect the grantor’s acknowledgment of a valuable consideration. It purported to convey for a valuable consideration, and acknowledged that a part of it consisted of advantages which he contemplated to result to him in the enhanced value to be given to his lands and other property by the location and building of the said railroad on his land. It passed the title which it purported to convey, and his petition admits that he well knew that Cummins was authorized to contract with him to the extent certainly of accepting for the defendants this deed. This transaction was complete, and the plaintiff does not seek to rescind it; his cause of action, if any he has, rests upon inducements which he alleges were held out by Cummins, consisting of a consideration not essential to support the validity of the deed, unless the promise of Cummins was made under circumstances which would be binding on the defendant. We have shown, we think, that whatever claim for damages the plaintiff may have against Cummins, none exists against defendant. Counsel, in their brief for the appellee, rely on the case of Henderson v. R. R. Co., 17 Tex., 560. We do not think that the rules of law applied there to the principal, for the unauthorized acts of his agent, have application to the facts of this case. Here the agent was not acting within the scope of his authority when he undertook to stipulate for the locality of a depot, but he was so acting in accepting a deed for the right of way. In that case the suit was to nullify a contract which was adopted and acted
If, however, the deed had contained the stipulation that the railway company should erect a depot within the limits indicated, and it had been accepted by the defendant as the act of their agent, fully empowered to accept a deed of that character, it would seem, on the principles and rules of the common law applicable to conditional estates, that the condition being a condition subsequent, and that from the nature of the subject matter of the conveyance, and the policy of the law which gives to railway companies the right of way over the lands of others on making compensation therefor, that the estate granted would have become absolute. See secs. 6 and 7, 2 Washb. on Real Prop., pp. 6 and 7 (*pp. 447-8). The law would not vainly permit the grantor, for condition broken, it would seem, to enter upon the land and determine the estate granted, when the grantee would be entitled, eo instante, to demand a right of way over the same identical land on making compensation therefor; the optional right of the grantee, on making proper compensation, would be paramount to the grantor’s right in the fee, ab initio. And, besides, the terms of the condition implies, that the building of a depot may succeed 'the expenditure by the grantee of large sums of money in constructing a road, which, when laid down, becomes permanently attached to the realty; the value of which is immensely greater than the land over which it runs; and the relation of the fractional part of the road running over the land in question to the entire road beyond
If the plaintiff was entitled to an action for damages, the measure of them is not, we think, that claimed by the petition, and which was adopted as correct in the charge of the court. The plaintiff claims as damages the diminished value of his land; damage consequent upon the construction of the road through his farm, necessitating additional fencing, and other agricultural losses and inconveniences, specified in the petition; and damage done by defendant in cutting down a bois d’arc hedge. Thus, the defendant is sought to be treated as a mere trespasser, and its liability for damages measured accordingly; as if the acts complained of were done under no color of authority, nor in anywise mitigated by reason of contract or consent given by the plaintiff. Under the state’s right of eminent domain, the railway company had rights, at the time of selecting the way of its road, which enabled it to avoid being placed in the position of a tres
Mr. Sedgwick, in his treatise on the Measure of Damages, vol. 1, 'Tth ed., 212, says, that in actions “where the contract is to do, or to refrain from doing, some particular thing, the rule of the civil law is perhaps the best that
The allegations of the plaintiff’s petition do not imply that any other consideration influenced the plaintiff in insisting upon the locality of the depot within a mile and a half of the town of Mantua than considerations of convenience and economy to himself in the use which the road would afford him, in view of his proximity to the point indicated, for purposes of transportation of persons and freight; nor that the proposal made to Cummins was by him understood in a different light. The plaintiff is not to be supposed to have conceived the idea that the railroad company, in selecting their depot station, were controlled by other considerations than their own interest, and that, in acquiring rights of way, it purposed to fix such depots with reference to a contemplated design to affect the values of property of other persons, either by passing through their lands or in the establishment of the depots along the line of the road. The plaintiff must have regarded the precise and identical spot for the location of the depot, at the time of his negotiations, as undetermined; and that the establishment of it definitely would be made with reference to the railroad company’^ views of its best interest, and not to that of the proprietors of the lands of the surrounding country. We may reasonably conclude that neither party, in speaking of the probable spot for its location, contemplated that a viola
Neither, then, is the comparative value of the property, estimated with reference to the place where the depot was built, nor where, according to the supposed contract, it should have been erected, nor the damages directly caused the land and property of the plaintiff by reason of the construction of the road, the proper rule for the measurement of plaintiff’s damages; but the true rule is indicated by the above quotation, to be applied to all the facts and circumstances adducible in evidence, to show the injury sustained by the plaintiff on account of the increased distance of the depot, as it was actually established, from the plaintiff’s residence and place of business, compared with the advantages he would have enjoyed in the uses of a depot located one mile and a half from the town of Mantua.
In respect to the damage claimed on account of cutting down by the defendant of his hois d’arc hedge, the allegations made to show a liability are too vague and general, taken in connection with the whole transaction, to show a right of action for damages. It is not negatived that the act complained of was necessary, and fully contemplated by the parties, when the right of way was granted by the plaintiff; and that whatever injury might result to the plaintiff therefrom was fully considered and estimated together with the advantages he expected to otherwise derive by the building of the road.
We conclude that the court erred in overruling defendant’s demurrer, and that the judgment ought to be reversed, and the cause remanded for- further proceedings. As the plaintiff may so amend his petition as to present a
Reversed and remanded.
[Opinion delivered May 3, 1881.]
Note to the Above Opinion.— The case of East Line R. R. Co. v. Garrett, 52 Tex., 133, had escaped the observation of the writer until after the foregoing opinion was prepared. The decision made in that case is here now referred to as supporting the correctness of our conclusions upon the leading questions in this case.
Richard S. Walker, Comm’r.