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is always subject to review by a court. Devl. Deeds, § 327. And so, if it is delivered before the condition is performed, equity will declare such delivery void. Id. $$ 321, 322; Hicks v. Goode, 12 Leigh, 490, 491. The depositary of an escrow is, in fact, the agent of both parties. As the agent of the grantor, it is his business to withhold the deed until the condition is performed; as the agent of the grantee, it is his business to hold it for him, and to deliver it to him after the condition is performed. Devl. Deeds, § 327.

The duty imposed upon McPhail in the present case was to ascertain whether the withholding of Paper A would prevent the construction of the road. By his own admission he ascertained that it would not. His only remaining duty, then, was to get compensation for Humphreys, and, failing this, to return the paper to Humphreys. But he utterly ignored the obligations thus resting upon him; hence his delivery of the paper was without authority, null, and void. Id. § 322; Hicks v. Goode, supra; Nash v. Fugate, 24 Gratt. (Va.) 208, 209. We are therefore of opinion that, on the facts and the law applicable thereto, the case is clearly with the appellant, Humphreys, and that the court below erred in dissolving the injunction and dismissing the bill.

There is much evidence in the record as to the damage done to the appellant by the railroad company in occupying his land, earth works, and masonry, and also as to Quantum of damages to the residue of his tract of land by damages. reason of said earth works or embankment. But this court will not invade the legitimate province of a jury by undertaking to ascertain such damages upon the varient estimates of witnesses, when the object can be better and more safely accomplished by a jury of the vicinage; but will enter a decree reversing and annulling the decree appealed from, and remanding the cause to said circuit court, with instructions to restore the case to its place on the docket, to be proceeded in to a final decree, and with a further instruction that, when the case is matured for hearing, an issue quantum damnificatus be directed to be tried at the bar of said court, on the law side thereof, to ascertain the damages aforesaid, and that the same, when so ascertained and duly certified to the chancery side of said court, be set off against said judgment at law confessed by the appellant in favor of the said Richmond & Mecklenburg Railroad Company, and that the excess of said damages, if any, over and above said judgment, be decreed against said railroad company in favor of the appellant, Humphreys.

Decree reversed.

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GULF, COLORADO & SANTA FE R. Co.

ย.

JONES.

(Texas Supreme Court, Nov. 10, 1891.)

Consideration of Deed-Location of Depot-Parol Evidence.-A deed of land to a railroad company stating the consideration to be a certain number of dollars, and another instrument executed at the same time by the land owner reciting that he would do certain acts "in consideration of the purchase of land from me for the location of a town site and the location of a depot at a point between" certain stations, held not to show the entire contract between the land owner and the railroad company, and parol evidence was admissible to show that the consideration of the deed was that the defendant should locate a depot on the land conveyed, although neither fraud nor mistake were alleged.

Authority of Right of Way Agent to Locate Depot.-The authority of a right of way agent of a railroad company to agree for the company to locate a depot on certain land purchased by it, held to be shown by a telegram from the general manager of the road, in which he said that if the land was not given they would not locate a depot on it, and other evidence tending to show that he was recognized by the company as its agent with such power, and permitted to execute such power.

COMMISSIONERS' decision. Section A. Appeal from Collin District Court.

Action for breach of contract, and to cancel a deed. Judg. ment for plaintiff. Defendant appeals.

J. W. Terry and Alexander & Clark, for appellant.
Garnett, Muse & Mangum, for appellee.

COLLARD, J.-Viewing this case from the standpoint of the appellee, who was the plaintiff below, it may be stated as follows: Plaintiff owned about 1,350 acres of Case stated. land in Collin County. Defendant's railroad ran through a part of the land, and in March, 1886, plaintiff conveyed to the company a right of way where the road was to run in consideration of one dollar, and the enhanced value to accrue to the land. Expecting to still further increase the value of his land, which was all in one body, plaintiff was desirous of having the company locate a depot and town on the survey, and for this purpose he offered to donate to the company twenty-two acres more of the same. The citizens of a small town in the neighborhood were also bidding for the depot. On the 2nd day of June, 1886, one Col. Wylie, who was agent for the company to secure right of way along

its route, came to see the plaintiff, in the interest of the company in reference to the depot and the land donation. While the matter was being discussed, Wylie produced a telegram from Snyder, the company's general manager, saying that if plaintiff would not give twenty-five acres of land the company would not locate its depot on his land. Plaintiff offered to donate the twenty-five acres, but Wylie demanded twentytwo acres of plaintiff's survey at a designated place, and three acres of land belonging to one Montgomery, adjoining, for convenience in grading. The negotiations resulted in a verbal agreement, by which defendant was to locate its depot on the twenty-two acres, at or near station 1674, between stations 1670 and 1678, for which plaintiff was to donate to the company the twenty-two acres, and to secure the three acres on the Montgomery land at his own cost. He gave Wylie $120, to tender Montgomery for the part of his land required. The company needed about sixty-two acres more of plaintiff's land, and afterwards offered him $2,080 for the same, which he agreed to; and on the 21st day of June, 1886, Wylie, acting for the company, drew up a deed for the twenty-two acres and the sixty-two acres, stating the consideration to be $2,080, for the entire eighty-four acres, (about that quantity,) omitting the facts of donation of the twenty-two acres, and the agreement to locate the depot on the same, Wylie explaining that the company wished to avoid an accumulation of deeds. Plaintiff called Wylie's attention to the fact that the deed did not mention the depot, and Wylie replied "that was all settled, and he would put that in another instrument." The other instrument was prepared by Wylie in writing, and is as follows:

"The state of Texas, county of Collin. Know all men by these presents, that 1, J. E. Jones, of said county and state, in consideration of the purchase of land from me for the location of a town site and the location of a depot at a point between stations 1670x00 and 1678, on the located line of the Gulf, Colorado & Santa Fe Railway running northeast to Red River, via Farmersville, I do hereby agree and bind myself, my heirs and legal representatives, to secure and pay for one hundred feet of right of way on the land of J. L. Montgomery from 1670x00 to 1657x00 in order to secure grade for depot purposes without delay. In order that the said company shall not be in any way damaged by delay in construction, I further agree and bind myself to pay said railway company at its office in Galveston any and all damages that the said company shall sustain by such delay that may be occasioned by me in failing to procure said right of way by legal process or otherwise. In witness whereof,

witness my hand this 21st day of June, 1886, in the presence of the subscribing witnesses. J. E. JONES.

"J. S. RIKE.
"L. E. BUMPAS."

The deed and the foregoing instrument in writing were both executed and delivered to Wylie at the same time, and sent by him to the company, he at the time paying plaintiff the stipulated consideration expressed in the deed, $2,080. Plaintiff, according to the contract, had the three acres of Montgomery's land condemned for the use of the company, at a cost paid by him of $220. The company did not locate the depot on the 22 acres, but on other 11 acres, bought by them from Montgomery. Had the company located the depot where plaintiff claimed it should be, at station 1674, or between stations 1670 and 1678, his other land would have been increased in value $3,000 or $4,000. Plaintiff brought this suit against the company, setting up the foregoing facts, and that the true consideration was not stated in the deed, and not fully stated in the written instrument. He prayed for cancellation of the deed to the 22 acres, damages to his other land by having it left in bad shape by carving out the land deeded to defendant, the amount paid by him for the Montgomery 3 acres of land, and for damages to the unsold part of his 1,350 acres of land; that is, the difference in its value as now situated and the value in case defendant had located its depot according to the contract. He also alleged that Wylie was fully authorized to make the contract to lo. cate the depot, and that the company, with full knowledge of the facts, ratified the same. He set up fraud of the company, through its authorized agent, in representing to him that the depot would be located as stated, by which he was deceived, and induced to give the 22 acres of his own land, and procure the Montgomery 3 acres, which he would not have done had he known the company would not put the depot on his land.

The case, as made by defendant's evidence, was that Wylie was only authorized to procure right of way for the road, and had no authority to contract for the location of the depot, and that he did not do so; that the company paid the consideration as stated in the deed without any knowledge of the alleged acts or promises of Wylie. Defendant relied upon the deed and the contract in writing, the terms of which could not be changed by parol, and which in fact stated the only agreement of the parties. The charge of the court submitted to the jury the issue as to whether or not, the contract to locate the depot as alleged by plaintiff was made by defendant or its lawfully authorized agent, and, if made by 51 A. & E. R. Cas.-27.

an agent not authorized, whether the company ratified it with knowledge of the facts; and they were instructed that, if they should find for plaintiff on these issues, that defendant failed to so locate its depot, and that plaintiff's adjacent land would have been worth more, in case defendant had complied with its contract, than it was with the depot as actually located, they should find for plaintiff, as damages, the increase in such value. The court also instructed the jury as follows: "If you find for plaintiff, you will not allow any sum to him as compensation for any land he may have conveyed to defendant, or for any sum he may have paid for it to Montgomery, as the consideration for the contract to locate the depot as aforesaid; but the measure of his damages would be restricted to such sum as will fairly compensate him for the increased value of his land, if any, that would have resulted had the depot been located in compliance with the agreement; and you will not regard any evidence admitted before you as to the value of the 22 acres, which plaintiff claims to have conveyed to defendant as the consideration of said contract, in so far as it bears upon the measure of damages if any." The issues of fraud and misrepresentation were not submitted to the jury. No objection was or is made to the charge. There was a verdict and judgment for plaintiff for $3,000 from which defendant has appealed.

Plaintiff's

consideration

-Sufficiency

Appellant's first assignment of error is that the court erred in overruling fendant's first special exception, viz: "To all it portion of plaintiff's third amended original petition which alleges another consideration right to show for the sale of the 83 20-100 acres of land than the consideration expressed in the deed itself; because of allegations. plaintiff alleges no accident, fraud, or mistake in the execution or delivery of the deed, and because it clearly appears from plaintiff's allegations that he was fully cognizant of the exact wording and framing of the deed of conveyance; that he and defendant's agent W. D. Wylie clearly understood the exact language and meaning of the deed, but agreed between themselves, for purpose of convenience, to interpret it differently from its plain and unambiguous meaning; and for further reason, under this special exception, defendant says the contract, as set out in plaintiff's said petition, and alleged as contemporaneous and as a part of said contract of sale, does not imply that the location of defendant's depot was any part of the consideration for conveyance of said land."

The general rule is well understood that a parol agreement cannot be ingrafted upon a written contract clear in its terms, in the absence of fraud, accident, or mistake. Bruner v.

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