Telfener v. Russ

¶11. Texas Lands — Right Acquired by Application to Purchase — Assigna-B7LTTY.

¶2The rigbt to purchase lands from the state of Texas, which is acquired by making application therefor to the county surveyor, and the acceptance and filing thereof by him, in accordance with the requirements of the statute, (Act Tex. July 14, 1879,) is a valuable right, which may be lawfully assigned. 57 Fed. 973, affirmed.

¶3S. Breach op Contract — Damages.

¶4Plaintiff, having made applications, which were accepted and filed by the county surveyor, to purchase certain lands from the state of Texas, (under the act of July 14,' 1879,) contracted to sell all his rights therein to defendant, who was to have until November 15, 1882, and no longer, to make the payments. On the same day the parties made another con*229tract, whereby plaintiff, for a new consideration, became bonnd, in case the salo and transfer were completed as agreed, to malic, at his own ox-pense, all surveys, maps, etc., and file them with the county surveyor, and in the general land ofliee of the state, within the 60 days required by the act.. Defendant, however, failed to complete the purchase on the date named, or at any subsequent time. 'Held, that the right of plaintiff to damages for the breach of contract became fixed on that date, and it was immaterial whether he made the surveys, etc., according to the second contract, or ever made them at all.

¶5In Error to the Circuit Court of the United States for the Western District of Texas.

¶6This was an action by George W. Russ against Count Joseph Telfener to recover damages for breach of a contract to purchase certain rights acquired by plaintiff in lands belonging to the state of Texas. There was a verdict and judgment for plaintiff, which, on a writ of error, was reversed by the supreme court of the United States, and the case remanded for a new trial. See 12 Sup. Ct. 930. Verdict and judgment have again been rendered in favor of plaintiff, (see 57 Fed. 973, for the court’s charge to the jury,) and defendant now brings the case on error to this court.

¶7The following statement of the facts was made by Mr. Justice Field when the case was before the supreme court:

¶8On tbe 14th of July, 1870, tbe legislature of Texas passed an act “to provide for the sale of a portion of the unappropriated public lands of the state,” and the investment of the proceeds. The following are the sections of the act which bear upon tins ease: "Sec. 2. That any person, firm, or corporation, desiring to purchase any of the unappropriated lands herein set apart and reserved for sale, may do so by causing the tract or tracts which such person, firm, or corporation desires to purchase to be surveyed by the authorized public surveyor of the county or district in which said land is situated. Sec. 3. It shall be the duty of the surveyor, to whom application is made by responsible parties, to survey the lands designated in said application within three months from the date thereof, and, within sixty days after said survey, to certify and record a map and field notes of said survey; and he shall also, within tlie said sixty days, return to and tile the same in the general land, office, as required by law in the oilier cases. … Sec. 5. Within sixty days after the return to and tiling in the general la.nd office of the surveyor’s certifícale, map, and field notes of tbe land desired to be purchased, it shall be the right of the person, Arm, or corporation who has had the same surveyed to pay, or cause to be jiaid, into the treasury of the state, the purchase money therefor at tlie rate of fifty cents per acre, and, upon the presentation to the commissioner of the general land office of the receipt of the state treasurer for such purchase money, said commissioner shall issue to said person, firm, or corporation a patent for the tract or tracts of land so conveyed and paid for.” “See. 7. It shall he the duty of the commissioner of tlie general land office to give such general and specific instructions to the surveyors in relation to the survey of the public lands under the provisions of this act as may best subserve all interests of this state, and carry into force and effect the intent and purposes of this act. See. 8. After the survey of any of the public domain authorized by this act, it shall not be lawful for any pen-son to file or locate upon the land so surveyed, and such file or location shall be utterly null and void. Sec. Í). Should any applicant for the purchase of public land fail, refuse, or neglect to pay for the same at the rate of. fifty cents per acre within tlie time proscribed in section 5 of this act, he shail forfeit all rights thereto, and shall not thereafter bo allowed to purchase the same, but the land so surveyed may be sold by the commissioner of the1 general land office to any other person, firm, or corporation who shall pay into the ü-easury the purchase money therefor.” An amendment of the act in 1881 extended its provisions to unappropriated land in other counties than those originally mentioned. On the 22d of January, 1883, both acts were re*230pealed.' While the first of these acts was in force the plaintiff helow, the defendant in error here, claimed to have acquired a valuable and transferable interest in a large body of these lands, exceeding in extent a million of acres, and to have sold the lands to the defendant below, Count Joseph Telfe-ner, at 25 cents an acre. To recover damages for breach of this alleged contract, and a supplementary contract of the same date accompanying it, the present action was brought in a state court of Texas. The petition of the plaintiff, the first pleading in the action, alleges that the plaintiff is a resident of Texas, and that the defendant is not a resident of .the state, but a tran''sient person then temporarily in the state of New York; that on the 1st day of November the plaintiff was the sole owner of a certain valuable, valid, and transferable interest in the whole of a certain body of land containing, as subsequently ascertained by survey, 1,813 tracts of 640 acres each, being an aggregate of 1,160,320 acres, situated in the county of El Paso, in the state of Texas, and forming part of what is known as the “Pacific Reservation;” and that he had become such owner by complying with the requirements of the act of July 14, 1879, mentioned above, and of the amendatory act of March 11, 1881. The petition then details the mode in which the plaintiff became such owner, namely, that during the month of October, 1882, being a responsible party, and intending to purchase the said body of land which was subject to sale under the terms of the acts mentioned, he applied to the surveyor of the county of El Paso for the purchase and survey of the 1,813 tracts, describing them by metes and bounds as a whole; that he made the application pursuant to the instructions of the commissioner of the general land office of the state to the surveyors of the counties and land districts containing lands subject to sale; that the application was filed and recorded in the office of the surveyor in October, 1882; that, having thus made due application for the purchase and survey of said lands, he was, on the 1st day of November, 1882, about to have them surveyed into tracts of 640 acres each, when the defendant, by his duly-authorized agents, applied to him to purchase his interest in the lands thus acquired; and that thereupon the plaintiff, not yet having paid to the state of Texas the 50 cents per acre to which the state was entitled, and the defendant offering to assume such payment, and desiring simply to contract with the plaintiff for the purchase and assignment of his right to purchase from the state, they entered into the contracts contained in the exhibits annexed, marked “M” and “N,” which are as follows:

¶9“Exhibit M.

¶10“The State of Texas, County of Dallas — ss.: This contract and agreement entered into by and between George W. Russ, of Dallas county, Texas, party of the first part, and Count J. Telfener, party of the second part, this first day of November, A. D. ,1882, witnesseth as follows: .Whereas, said Russ claims to have made application in due form for the purchase of about one million acres of land, more or less, in El Paso county, Texas, from the state of Texas, under and by virtue of an act of the legislature of Texas, approved July 14,1879, providing for a sale of a portion of the public lands of Texas at 50 cents per acre, and the amendments to said act, said application having been made in October, 1882, and duly filed in the surveyor’s office of El Paso county, at Ysleta; and whereas, the said Count Telfener is desirous of purchasing from said Russ all his rights, titles, and interest under and by reason of such application, provided it shall appear that such application has been regularly made and filed in such manner as will, under the terms of said law, entitle the said Russ to become the purchaser of the said lands from the state of Texas; and in such case has agreed and promised to pay to said Russ, as consideration of his sale, transfer, and assignment of all his said rights, titles, and interest, twenty-five cents per acre for each and every acre of land covered by his said application, and the said Russ has agreed and bound himself, in consideration, of said price and sum to be paid to him, to sell, transfer, and assign unto the said Count Telfener all his rights, titles, and interest in said lands acquired by his application and files: In order, then, that the said contract of purchase and sale and assignment may be effected, the said parties agree as follows: The said Count Telfener, for the purpose of ascertaining whether the said application for purchase has been regularly *231ami properly made as aforesaid, and according to the provisions of said la w and the amount of land covered by or embraced within such application, shall proceed at once and inspect the records and tiles of the surveyor’s ofiice of El Paso county, at Yslota, and the map of said county in said office. If it shall be there shown that the said application and tiles thereof have been regularly and properly made, in such manner as under the terms of said law would entitle the said Rnss to become the purchaser of said lands from the state of Texas, the said parties shall ascertain by reference to said application and files and the maps of said county in said surveyor’s office, and in the office of the commissioner of the general land office of the state at Austin, the number of acres approximately embraced in or covered by said application and files. The number of acres being ascertained by approximation in manner aforesaid, and said application having been found good and regular as aforesaid, the said Count Telfener agrees to pay to the said Russ in cash, in the city of Dallas or the city of Austin, Texas, as said Russ shall prefer, ninety per centum of the said purchase price so agreed upon as aforesaid for the number of acres so' ascertained' approximately as .aforesaid; and the said Russ agrees and hinds himself that upon such payment being made he will execute and deliver to said Count Telfener any and all deed or deeds or other instruments that may he proper or necessary, conveying, transferring, and assigning unto the said Count Telfener al) and singular the rights, titles, and interests that the said Russ now has or may be entitled to in and to said lands, by reason of such application and files, binding himself by covenant of warranty against all persons claiming or to claim the same, or any part thereof, by, through, or under him. It is understood, however, that the said inspection, ascertainment of regularity of files, and of the amount of land by approximation shall be completed on or before the 15th day of November, 1882, and that the said Count Telfener shall not bo on tilled to any delay beyond that time for said purposes and for making the payment aforesaid. After the transfer and assignment as aforesaid shall have been made by the said Russ, the said Count Telfener shall proceed, without delay, and have said lands surveyed and platted, and the field notes thereof returned and filed according to the provisions of said law. Upon the completion of said surveys and field notes, the number of acres embraced in said lands so sold and transferred shall be ascertained, and, if the said sum so paid as aforesaid by said Count Telfener shall not amount to the full purchase price of twenty-live cents per acre for each and (ivory aero of said land, the deficit shall he paid at once in cash to said Russ by the said Count Telfener in the city of Dallas, Texas, or at Austin, Texas, as the said Rnss may prefer.

¶11“Witness our hands this 1st day of November, 1882.

¶12“Geo. W. Russ.

¶13“J. Telfener, by G. Baecarisse, Agt.

¶14“Witness:

¶15“Chas. Fred. Tucker.

¶16“Win. McGrain.’’

¶17“Exhibit N.

¶18“This conti act and agreement entered into this 1st day of November, 1882, by and between Count JT. Telfener and G. W. Russ, witnesseth as follows: Whereas, the said parties have this day entered into a contract providing for the sale and transfer by the said Russ to the said Count Telfener of all the right, title, and interest of the said Russ in a certain tract of about one million acres of land in El Paso county, Texas, for the purchase of which the said Rnss has made application under and by virtue of the act of the legislature of Texas approved July 14, 1879, known as the ‘50-Cent Act;’ and whereas, if said sale and transfer shall he made as provided for by said contract, it will be necessary to complete the surveys of said land, and file the field notes and maps thereof in the surveyor’s office of El Paso county, Texas, and in the general land office at Austin, within the time required by the said law: Now, therefore, it is agreed by the said Russ that, if the sale and transfer shall lie made under the said contract as aforesaid, he will, at his own proper cost and expense, make all the surveys, field notes, and maps of the said lands, and file them in the office of the surveyor of El Paso county, and *232in, the general land office of the state, at Austin, in the manner and within the time required by the provisions of the said law, and that he will pay all the feos required to be paid for such patents as shall be issued by the commissioner of the general land office for said lands to said Count Telfener, his heirs or assigns, the said surveys, field notes, and maps to be correct; and in consideration of said services and payments to be rendered and paid. by said Russ the said Count Telfener agrees and binds himself to pay to said Rhss in cash, at the city of Dallas or Austin, Texas, the sum of five (5) cents per acre for each and every acre so surveyed, platted, and returned by him as aforesaid, said payment to be made as follows, viz.: Three (3) cents per acre when the survey and field nof<^ shall be completed, and one (1) cent per acre when the field notes shall be filed in the land office, and the balance when the patents shall issue.

¶19. '.“Witness our hands this 1st day of November, 18S2.

¶20“Geo. W. Russ.

¶21“J. Telfener, by C. Baccarisse, Agt.”

¶22The petition alleges that by the contracts set forth the plaintiff sold and agreed to assign to the defendant, and the defendant purchased and agreed to accept from the plaintiff, at the price of 25 cents an acre; a conveyance of plaintiff’s application to purchase of the state 1,S13 tracts of land, being part of the Pacific reservation, and that at the time the plaintiff was able and authorized to make the contracts, and to execute and deliver a proper and valid assignment and transfer of his said application, and of all his rights, titles, and interests thereunder, to the defendant. The petition also contains various allegations as to arrangements made by the pardos for ascertaining whether or not the application of the plaintiff for the purchase of the lands had been regularly and properly made, and according to the provisions of the laws of Texas, and, among others, that such conformity being shown as would entitle the plaintiff to become the purchaser, the defendant agreed to pay him 90 per cent, of the purchase price stipulated. It also alleges the readiness of the plaintiff to fully comply with the contract, and the failure of the defendant in all things to comply with the same on his part, to the damage of the plaintiff of $400,000. The plaintiff, therefore, prayed judgment for the sum of 25 cents per acre alleged to be due to him for said 1,160,320 acres, and also for the sum of $58,016, alleged to be due him on the supplementary contract contained in Exhibit N, together with legal interest on both sums, and for such further judgment and decree as on the hearing might seem equitable and just. The defendant appeared to the action, and for answer sa’d — First, that the petition was insufficient in law, wherefore he prayed judgment; second, that he denied all and singular the allegations of the petition; and, .third, that he denied that he executed, by himself or agent, the instruments, or either of them, annexed to the petition. The case was subsequently, on application of the defendant, removed from the state court to the circuit court of the United States for the western district of Texas, and there the defendant had leave to file an amended answer, which averred (1) that the petition was insufficient in law to require him to answer it, upon which the judgment of the court was prayed; (2) that the so-called Pacific reservation was not subject to sale by the state of Texas; and (3) that if Baccarisse, mentioned in the petition as the agent of the defendant, ever had any authority to negotiate in regard to 1he purchase of lands in Texas, it was merely as an employe under one Westcott, and his employment was merely to inquire and ascertain whether options or conditional contracts could be obtained by which parties would agree to sell lands in that state subject to the inspection and approval of an expert or inspector sent out by a London syndicate for that purpose, such contract not to be final and binding unless ratified by the defendant after the approval of the expert; that the defendant never knew, until shortly before the present suit was instituted, that Baccarisse had attempted to execule any Contract, as set up in the petition; and that he never authorized him to mhke any contracts, nor ever approved or ratified any made by him. This ■answer was again amended, by leave of the court, by the addition of a further defense, in which the defendant averred that if any such contract-or *233contracts as arc referred to and exhibited with (.he petition were entered into by his authority or ratiiied by him, which is denied, the. same were without any consideration, or, if there was any valid consideration therefor, the same failed in this: that the law which permitted the purchase, of ¡he lands was repealed before the steps required thereby to obtain tide, or any vested interest therein, could have been or were taken, and by reason thereof all right, if any, which defendant acquired or could have acquired under the contracts were lost to him.

¶23J. L. Peeler, for plaintiff in error.

¶24Charles Fred. Tucker, Clarence IT. Miller, and Franz Fizet, (Hancock & Shelley, of counsel,) for defendant in error.

¶25Before PARDEE, Circuit Judge, and TOULMIN, District Judge.