Thе facts in this case are undisputed, and in order to determine this appeal it is necessary to relate only the following: Appellee is a corporation engaged in the sale and manufacture of cross-ties. Appellant is a common carrier. Prior to June 6, 1907, there was an existing contract between appellant and aрpellee by which appellee was to furnish appellant certain cross-ties at agreed prices. This contract expired November 1, 1907. Appellant required more ties, and appellee had them for sale, and both parties desired to enter into a contract similar to the one then in existence to cover a period of two years from said November 1, 1907, and, in order for appellee to meet the requirements of appellant for ties, it was necessary to agree in advance in order that appellee could mature its plans to furnish the required amount. Accordingly, in that connection appellant’s president wrote the following letter to appellee: “St. Louis, June 6, 1907. Mr. L. E. Mitchell, Mitchell-Crittenden Tie Company, Texarkana, Ark. Texas — Dear Sir: Referring to several telegrams passing in the matter of our tie requiremеnts for year 1908. It is understood and agreed that the Mitchell-Crittenden Tie Company will furnish the following ties for use during year 1908 at prices shown, delivery to start immediately you have completed delivery of our requirements for year 1907. (Here follows description, quantity, location and price of ties.) It is also understood and agreed that we will accept аs many additional first-class white oak ties delivered along the right of way in Arkansas and Texas as it is possible for you to get out — in other words, you are obligated to deliver us a total of 400,000 white oak ties, but we will accept as many more as are obtainable. The quantity shown for red oak, cypress and pine is not to be exceeded. As soon as possible after you have completed delivery of our 1907 requirements, formal agreement will be drawn up. Meantime the acceptance of your company оn original of inclosed letter, which is *1192 written In duplicate, will be binding upon all concerned. E. H. Britton.”
As directed by tbe letter, appellee promptly accepted appellant’s proposition. It was agreed between tbe parties, as part of tbe consideration of tbe new contract, that appellant would furnish transportаtion over its line of railway to tbe officers, agents, and employés of appellee while in tbe performance of tbe contract. After receiving tbe foregoing letter and agreeing on tbe transportation feature of tbe same, appellee set about tbe preliminary work necessary to get out tbe ties for appellant under tbe new contract and received transportation from appellant in that behalf. Appellant ceased furnishing appellee transportation on July 12, 1907, upon advice of its counsel that to do so would be in violation of the “anti-pass law” of tbe state of Texas. In an attempt to reduce their agreement to writing the parties pre- • pared a written contract which was dated June 1, 1907, but which was not in fact executed and delivered until about July 1, 1908, more than a year after tbe agreemеnt was reached and after appellee bad entered upon the performance of tbe same. Tbe contract as finally signed contained tbe provisiоn that “tbe railway companies will, as part payment for ties, and as a further consideration for the faithful performance of this contract, upon written request of the company, furnish transportation over their respective lines of railway to such officers, agents and employes of the tie company as may be actually necessary for the performance of the work hereunder, * * * provided, however, that should the above provisions be held invalid under the laws of any State of the United States, at any time, then the company will pay for all transportation so furnished at full tariff rates.” As stated, under advice of counsel, appellant refused to furnish appellеe any transportation whatever after July 12, 1907. Apiiellee, in the l)erformance of its contract, paid appellant $1,335.30 for railroad fare. Appellee has in еvery respect performed its contract; likewise appellant, save and except the furnishing of the transportation agreed upon. Both originally and by the written contract the parties thereto in good faith thought the contract to furnish transportation could be made. Appellee would have charged and appellаnt would have paid $1,335.30 additional for the ties agreed upon, if either had known it was unlawful to agree to give transportation in lieu thereof. Appellee sued in the district court of Navarro county and recovered judgment for tbe amount claimed, the case being tried without jury, and the case is here for review.
What we have said in disposing of appellant’s nrst assignment, in our opinion, disposes of its third, fourth, fifth, and sixth assignments of error, and hence it becomes our duty to also overrule said assignments.
Finding no reversible error in the record, the judgment of the trial court is affirmed.