St. Louis & North Arkansas Railroad v. Crandell , 75 Ark. 89 ( 1905 )

Hirr, C. J.,

(after stating the facts.) 1. The appellant contends that appellee had no contract with it other than what appears in his right of way deed. The evidence adduced by appellee amply sustains the finding that there was a contract between appellee and the railroad company. The propositions made in the citizens’ meeting were submitted to the railroad company, and accepted by it, and then the parties, under the direction of the railroad company’s president, proceeded to make a contract between themselves, so as to effectuate the propositions made and accepted. Every move of Mrs. Murray and Crandell was conditioned on the acceptance by the railroad company of that site as the station grounds. There is some difference as to the extent Mr. Watkins dictated the contract, which is wholly immaterial; it was drawn only after he notified both parties that the railroad company would accept the proposition, and this- contract was between Crandell and Mrs. Murray, binding each other reciprocally to the terms agreed upon, so that it could be made effective between them when the time came to deliver the deeds to the railroad company. Later the railroad company took a written guaranty from citizens to the effect that the various matters it required would be furnished free of expense to the company. This did not in any way alter the status of the depot proposition; it merely guarantied, inter alia, that it'would be given as stipulated. If Mrs. Murray had conveyed to Crandell in consideration of the money paid her by him, and then he conveyed the land to the railroad company with a right of way over his other land, then the transaction would have been plainer, but not different in legal effect from the actual one. The real consideration of Crandell’s conveyance of his right of way and securing the Murray land was the establishment of a depot on the Murray land, so that his property would be enhanced in value thereby. The agreement of the railroad company that it would put the depot there, with full knowledge of Crandell furnishing the money for the purchase of the Murray land, the acceptance of Crandell’s right of way deed with a nominal consideration, when the real one was known, constituted a contract between Crandell and the railroad company that it would locate the depot on the Murray land. So far as Crandell and the railroad company was concerned, the contract rested in parol, and was carried out by three different writings, one the contract dictated by the president of the railroad company between Mrs. Murray and Crandell, and the two deeds from Mrs.' Murray, respectively, to the railroad company consummating the agreement, It is insisted that Crandell’s deed alone evidences the consideration for it, but this court has often held that the consideration named in a deed is only prima facie evidence of the real consideration, and parol evidence is admissible, not to defeat •the deed, but to prove the real consideration therefor, with limitations not necessary to develop here. Jordan v. Foster, 11 Ark. 139; Pate v. Johnson, 15 Ark. 275; Vaugine v. Taylor, 18 Ark. 65; Barnett v. Hughey, 54 Ark. 195; Kelly v. Carter, 55 Ark. 112; Busch v. Hart, 62 Ark. 330; Davis v. Jernigan, 71 Ark. 494.

It is permitted the landowner, applying this rule to these facts, to show by parol that the consideration for a right of way -deed was the erection of a depot on the ground. 1 Rorer on Railroads, p. 483; Watterson v. Railway, 74 Pa. St. 208. The application of these principles to the case at bar sustains a contract between appellee and appellant as having been validly made and properly proved.

2. Objection is made to the testimony of the occurrences at the citizens’ meeting. This was upon the theory that Crandell’s deed was all the evidence admissible, and, it being in writing, these were prior occurrences merged into it, and therefore inadmissible. As indicated in discussing the other question, the deeds were not the entire contract by any means; they were but parts of the execution of the contract between the railroad company .-and Crandell, which rested in parol. Evidence of a parol contract carried out by executing a deed in furtherance of it does not offend against the rule forbidding alteration, addition or variation • of written contract by parol. Kelly v. Carter, 55 Ark. 112.

3. Appellant contends that the establishment of the passenger depot within the corporate limits, was required by law, and ■rendered unnecessary the further maintenance of the depot 500 yards distant on the Murray place. If that be conceded, it does mot help appellant. When it contracted to locate the depot on the Murray land, it knew it could be compelled to comply with the statute and maintain a depot in the corporate limits also, and it should have contracted against this possibility if it desired to avail itself of a right to abandon this one. The evidence fails to show a forced location of the depot in compliance with a statutory requirement and in fulfillment thereof. The town authorities never acted, and the railroad could not have been forced to comply with the statute till they did. Railway Company v. B’Shers, 59 Ark. 237. But it is insisted that the railroad could waive that, and when it accepted the money from the citizens it became in legal effect as if the statute had been fully complied with. The evidence shows that the new station is only a passenger depot, whereas the statutory requirement is “to stop all trains, freight or passenger, at some point within the corporate limits of such town most convenient for the reception and handling and discharge of freight, and the reception and discharge of passengers.” Kirby’s Dig. § 6709.

It is plain that the new depot is not erected-in obedience to and fulfillment of the statute, but is a voluntary act, and there has been a voluntary abandonment of the Murray depot as a passenger station.

4. The question discussed in Railway Company v. Birnie, 59 Ark. 66, as to the length of time a depot must remain in order to be a performance of the condition of the donation, was not raised in this case.

The judgment is affirmed.