,922
FEDERAL REPORTER,
vol. 54.
say that The parties have a rigbt to appeal or ,sue put writs qf: error from aU final and decrees,if that right is invoked intin}e, and in the prescribed fol')ll. A part of that prescribed form is . for of the judges of the trial court to allow the appeal or writ of error, ,and the appej\l or writ of error is not "taken or sued out" until thataUpwance is obt$ed, (Barrel v. Transportation Co.,3 Wall. 424; Brooksv. Norris, 11 Row. 204; Scarborough v. Pargoud, 108 U. S. 567, 2. Sup. Ct. Rep. and parties and their attorneys sometimes incur serious hazard of losing their right of appeal by omitting tp take the proper steps in due time, so that misconnections liable. to occur may not prevent their obtaining the necessary al10waI;lce from a judge whose other duties take h4n to different and distant in his district. The form of writ of error for taking a casetrom the' circuit court to the supreme court which was prescribed years ago under an act of congress, and which has been in use since, has on it a memorandum of allowance to be signed by the juqge. Section 9; Act 1792; Mussina v. Cavazos, 6 Wall. 357. In actual practice the petition for. writs of error is also indorsed "allowed" by the judge. The office of each is to show the fact that the writ is allowed, and :it does not appear to us to be jurisdictional that the allowance should be indorsed on both, or on one rather than the other. It is well to proceed in order, and in a matter of general usage so long established parties could not complain if some strictneasshould be exercised in enforcing compliance with prescribed fonns. In this case the plaintiff in error did not use reasonable diligence to get his bond approved in time and to obtain the customafY indorsement on the writ of error. He relied on the clerk to do for him what the clerk was under no official obligation to do. He complains with no very good grace of the manner in which the clerk perf{)rmed a purely voluntary service for his accommodation and at his request. As, however, our view of the law does not require us to 8UStain the motion to dismiss the writ of error for the ilTegularities suggested by it, and no apparent injury has been done the defendant in error, it is ordered that the motion be refused. ,Wi' have done it would not have peen improper.
l!l'l'or. We do not
it was bis duty to do
WARNER v. TEXAS & P. RY. 00. (OI.rcutt Oourt ot Appeals, Fifth Oircult. No.96. 1. STATUTE, OF FRAUDS A YEAR.' VERBAL AGREEMENT NOT TO BE PERFORMED WITHIN
March 13, 1893.)
a.
Under the Texas statute ot frauds, (Rev. St. art. 2464,) a verbal agreement which, bya fair and reasonable interpretation, Il.II.d in vlew of all the clrcul;Ilstancesexlstlng at time, does not admit of performance, according to its ianguage and intention, within a ye.v trom the time of its is void. '
SAME.
A verbal agrp.ement, whereby a railroad company undertakes to lay a awltch for the use of a sawmill owner, and to maintaIn the same as
WARNER
v. TEXAS" P. BY. CO.
923
as he should need it, is within the s.tntute when it appears that it was ex· pected and understood between the parties that he would need it tor ID8.IIY years. 8. SAME-PART PERFORMANCE.
. Part performance ot a verbal contract within the statute ot frauds will not take the case out of the statute in an action at law, but is cnIy ground for relief in tqwty.
In Error to the Circuit Court of the United States for the Eastern District of Texas. Action by Charles Warner against the Texas & Pacifio Railway Company to recover damages for breach of contract. The court directed a verdict for defendant, and entered judgment thereon. Plaintiff brings error. A motion to dismiss the writ of error was heretofore denied. 54 Fed. Rep. 920. Judgment affirmed. H. Chilton, for plaintiff in error. Wm. Wirt Howe and T. J. Freeman, for defendant in error. Before PARDEE and McCORMICK, Circuit Judges, and TOur,. MIN, District Judge.
TOULMIN, District Judge. The plaintiff in error brought this suit against the defendant in error, alleging in his petition that in 1874 he made a contract with the Texas & Pacific Railway Company to the effect that, in consideration of his agreement to grade the ground and tprnish the ties for a switch on said company's railroad at a point known as ''Warner's Switch," it would furnish the iron, and complete and maintain such switch at that point for his benefit for shipping purposes as long as he needed it; that the switch was constructed in accordance with the contract, and maintained until the 19th day of May, 1887, when, on that day, it was wrongfully, and over the protest of the plaintiff, taken up and destroyed by certain persons, who were then operating the defendant's railway as receivers thereef by appointment of the United States circuit court in and for the eastern district of Louisiana.; that the defendant has ever since neglected and refused to reconstruct and maintain the switch as it contracted and agreed to do; that by reason of the removal of the switch and defendant's refusal to maintain the same the plaintiff has been greatly damaged by the consequent depreciation of his property. The property was specifically described, and consisted of timber lands, timber privileges, sawmills, etc., all of which, as alleged, had been acquired, at the time of the removal of the switch, for the purpose of carrying on the business of sawing lumber for market, and which was rendered much less valuable for the want of facilities for transporting his products and supplies. This suit is for damages for the breach of the defendant's agreement. On the trial below, when the evidence as to the terms of the contract between the parties had been concluded, and on that issue alone, the court held that the contract was not a valid and binding one upon defendant, and instructed the jury to return a verdict for the defendant. To this action of the court the plain. tiffin error excepted. The record in this case presents but a sin-
92.4
FEDERAL REPORTER t
gle question for our decision, and that is, ''Was the contract between Wmel' and the railroad company void under the statute of fTaude?" Warner agreed to furnish the ties and grade the ground for the swjt9h.. .. This he did within one year. The railroad company agreed to maintain the switch .for Warner's benefit, "as long as he needed it." This agreement it has broken. It was a verbal agreement, and 1)ponit this action is founded. If this agreement was "not to be performed within the space of one year from the making thereof," the action cannot be maintained. The agreement is, in its terms as to duration, indefinite and uncertain; but if it is apparent that it the of. the parties that it was not to be performed within. the space of one year from the time it was made, it would be void under the statute' of the state of Texas known as the statute of frauds. Rev. St. art. 2464. That statute means .to include any agreement which by a fair and reasonable interpretation of the terms used by the parties, and in view of all the circumstances existing at the time, does not admit of its performance, according to its language and intention, within a year from the time of its making. Browne, St. Frauds, §§ 273, 283; Heflin v. Milton, 69 Ala. 356; McPherson v. Cox, 96 U. S. 416; Packet Co. v. Sickles, 5 Wall. 580.
The language used was, to maintain the switch "as long as he (Warner) needed it." What is a fair and reasonable interpretation of this language,in view of all the circumstances? What was the :intention and understanding of the parties? To ascertain that we must .look at alI the circumstances and surroundings that led to the ,making of the contract. What were they? We find Warner breaking up and abandoning his milling business in other states, and concentrating his business in the state of Texas; after selecting theipOint at. which he desired to locate, he purchased large tracts ,of timber land for the purpose of carrying on and maintaining·:msbusiness in Texas; that the point of location was What was afterwards known as ''Warner's Switch;" that at the time the agreement was made the representative of the railroad company whQ was acting for the company in the matter made vanous inquiries as to the amount 'of timber accessible to the proposed location,and as to Warner's experience in conducting mills; Warner stating that there was enough timber in sight to run a sawmill for 10 years, and that by moving back some 3 miles from the railroad there would be enough to run a mill for 20 years; and he says that he calculated to stay there as long as he lived. These facts and circumstances, connected with the making of the contract, clearly show that the intention of the parties at the time was that the switch was to be maintained permanently. They at least show that it was in the contemplation of the parties, and was their understanding, that Warner would need the switch for a much longer period than one year from. the time the agreement to maintain it was made, and the proof is that it was in fact maintained for about 13 years. We think it appears affirmatively that the agreement was not to be performed within the space of one year, and that it was void. In a suit for breach of covenants in a void contract there
HART
v.
BUCKNER.
925
can be no recovery. Crommelin v. Thiess, 31 Ala. 412; Shakespeare T. Alba, 76 Ala. 356. But the plaintiff in eITor contends that the performance by him within one year of his part of the agreement took the contract out of the statute of frauds. The answer to this contention is that part performance of a verbal contract within ,the statute of frauds has no effect at law to take the case out of its provisions, but is only a ground for equitable relief, and cannot be urged as a defense in a suit at law. Browne, St. Frauds, § 451; 2 Story, Eq. Jur. §§ 759, 1522, note 3; Railroad 00. v. McAlpine, 129 U. S. 305, 9 Sup. Ct. Rep. 286. We perceive no eITor in the ruling of the court below, and the judgment must be affirmed.
HART v. BUCKNER et at (ClrCllit Court of Appeals, Fifth Circuit. No. 90. L CIRCUIT COURT OF ApPEALS DECREE-REVIEW. APPEAL FROM INTERLOCUTORY INJUNCTIONAL
December 19, 1892.)
On an appeal to the clrClIit court of appeals from an InterloClItory order gl'antingan injunction, the right of the complainant to other relief demanded by his bill cannot be considered when the same has not yet been passeu upon by the court below; and the only question before the appellate conrt is thn propriety of the injunction. STREET RAILWAYS- RIGHTS OF LOT OWNERS-
.. MUNICIPAL CORPORATIONS INJUNCTION.
The rights of owners of lots abutting on a pubUc street, even though they do not include the fee of the street, are property rights, the Invasion of which without authority by an electric railway may be prevented by injunction.
8.
SAME - PARTIES.
Where there is an unauthorized obstruction of a public street, all of the adjacent lot owners who sustain a special injury therefrom can maintain a suit for injunction, and no other parties defendant are required than alleged trespasser. Laws La. 1888, Act No. 135, requiring that a sale of a street-railway franchise shall be made to "the highest bidder," means the highest bidder in money, and the sale of the franchise is invalid where the specifications call for, and tho adjudication is made to the highest bidder in "square yards of gravel pavement." 52 Fed. Rep. S35, affirmed. The interval between the sale of the franchise and filing of complainants' bill to enjoin the construction of the railway in front of their premises was one month and eight days, and the franchise itself was granted against the public protest of one of the complainants and of several other residents on the street. Held, that there was not such delay as amounted to an acquiescence in the grant, such as would preclude complainants from asserting their rights. 52 I!'ed. Rep. 835, affirmed.
"
ELECTRIC STREET RAILWAYS-SALE OF FRANCHISE-POWERS OF COUNCIL.
G.
SAME-INJUNCTION-LACHES.
Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. In Equity. Bill by Newton Buckner and others against Judah Hart to enjoin the construction of an electric. trolley railway in front I!tf complainants' premises on Coliseum street, New Orleans. The