Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1895-04-28
SUPREME COURT.


- llNIFfN VI AflllllNllNs
Weatherford, Mineral Wells and
Northwestern Railway company vs.. NJ,
i. Wood-Wrlt of error to Second dis
trict: Wood had n Judgment against
the railroad for $1,000 and in satislac-
tlon of It the railroad agreed to pay
him $500 cash and issue him a pass over
the road for himself and family for
ten years. the pass to be Issued annual-
ly and also to stop its trains for his
convenience. The $500 was paid and
the other part OF the contract compiled
with for two years. After the second
year the road refused to issue a pass
or stop its trains and Wood sued for
breach of contract, The defense was
based on the proposition that no action
could be maintained upon the verbal
contract, because II was not to be per-
formed within one year. Wood rccov-
cred judgment and the case was af-
firmed by the court of civil appeals. 1t
IL urged here that the contract was not
within the statute OF frauds. That stat
ute provides that mo action shall be
brought upon any agreement which is
not to be performed within the space
of one year from the making thereof
unless In writing" 1t seems
to be very generally held in the En-
glish and most of the American courts
that the agreement is not within the
statute where ~ the agreement Is OF
such character that either party there
TO may perform his part thereof within
a year though the other party can not
or (2) the consideration for the agree
ment has been paid or executed. This
class of decisions excludes from the
operation OF the statute all agreements
except those which can not be per-
formed by either side within n year.
Since such contracts are rare this rul-
ing virtually repeats the statute. and
this court Mt an early date evinced
OF liuinRifuu tlAn n fpi1nKV ~
structlon of the statute of frauds which
defeats the legislative viii % Texas,
$500. The question presented has not
been decided by this court. though
raised in the brief Of Miller VS., Roberts,
IS Texas, 1G. Some courts hold that
the statute is applicable to that class
OF cases where the contract or agree
ment OF the party sought to be "charg-
ed Herewith" in the particular suit
was not to be performed within the
year. though the promise OF the other
party was performable within the year
or the consideration executed. Under
the view taken of this case, II Is un-
necessary to determine now which OF
these two conflicting lines of decisions
this court will follow. 1t seems well
settled that where there Is a cOntn-
gency, expressed upon the face Of the
contract or implied from the circum-
stances, upon the happening of which
the contract or agreement Will be per-
formed, the contract Is not within the
statute, though 1t be clear that 1t can
not be performed within a year except
In the event the contingency happens,
Thus an agreement to give an annual
pass during life is performable by the
happening OF the implied contingency
OF the death OF the donee within the
year and is not within the statute. So
an agreement to support child until
majority; so an agreement not to do
business at a certain place. If the con-
tlngency Is such that It's happening
may bring the performance within u
year the contract is not within the
statute, and this Is true whether the
parties at the time had In mind the
happening of the contingency or not.
The agreemnt to give the pass and
stop the trains was personal TO Wood
and family. He could not transfer It.
In case OF his death within the year
the obligation OF the company TO him
would have passed to his heirs or ex-
ecutors. II 1t be held that each MEM
Der of his family had an interest In the
contract the same result would have
followed the death OF each or all OF
them within the year. Affirmed. opin-
ion by Denman, j.
Gulf, Colorado and Santa Re Railway
company VS.. Hume Bros.-M0tion to
prevent the Issuance Of mandate: The
motion SEEKS 10 prevent lue CLERK from
issuing the mandate In this cause until
the costs OF this court and OF the court
OF civil appeals. including the cost of
the transcript from the district court.
is paid 1t is made TO appear that the
practice has been, in cases which are
reversed and remanded by this court,
to require only the payment OF costs
of this court and Of the court Of civil
appeals, not including in the latter the
cost OF the transcript from the district
court. The motion should be grated
The statute in force before the organi-
cation of the courts OF civil appeals
provided that the clerk OF the supreme
court shall mot be compelled" to issue
the mandate until all costs accruing
in the supreme court had been paid.
This merely permitted the clerk to de-
mand the payment of the costs before
delivering the mandate, The statute
now in force provides that "the clerk
OF the supreme court shall not de-
liver the mandate until all costs of that
court (meaning the supreme eourD and
OF the court of clyil appeals have been
paid" This is mandatory. Under the
former law II was held that the costs Of
the transcript OF the proceedings OF
the u1al court was not part OF the
costs accruing in the cause In the SUI
preine court for which execution should
issue from that court" t54 Texae. l50).
But section IS OF the act TO organize
TIE courts Of civil appeals expressly
mentions the cost Of the transcript US