Warner v. Texas & Pacific Ry. Co.
164 U.S. 418 (1896)

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U.S. Supreme Court

Warner v. Texas & Pacific Ry. Co., 164 U.S. 418 (1896)

Warner v. Texas and Pacific Railway Company

No. 47

Argued May 5, 1896

Decided November 30, 1896

164 U.S. 418

Syllabus

The clause of the statute of frauds which requires a memorandum in writing of "any agreement which is not to be performed within the space of one year from the making thereof" applies only to agreements which, according to the intention of the parties as shown by the terms of their contract, cannot be fully performed within a year, and not to an agreement which may be fully performed within the year, although the time of performance is uncertain, and may probably extend, and may have been expected by the parties to extend, and does in fact extend, beyond the year.

An oral agreement between a railroad company and the owner of a mill, by which it is agreed that if he will furnish the ties and grade the ground for a switch opposite his mill, the company will put down the iron rails and maintain the switch for his benefit for shipping purposes as long as he needs it, is not within the statute of frauds as an agreement not to be performed within a year.

Packet Co. v. Sickles, 5 wall. 580, doubted.

The provisions of the statute of frauds of the State of Texas concerning sales or leases of real estate do not include grants of easements.

This was an action brought May 9, 1892, by Warner against the Texas and Pacific Railway way Company, a corporation created by the laws of the United States, upon a contract made in 1874 by which it was agreed between the parties that if the plaintiff would grade the ground for a switch and put on the ties at a certain point on the defendant's railroad, the defendant would put down the rails and maintain the switch for the plaintiff's benefit for shipping purposes as long as he needed it. The defendant pleaded that the contract was oral, and within the statute of frauds because it was "not to be performed within one year from the making thereof" and because it was "a grant or conveyance by this defendant of an estate of inheritance, and for a term of more than one year, in lands."

Page 164 U. S. 419

At the trial, the plaintiff, being called as witness in his own behalf, testified that prior to the year 1874, he had been engaged in the lumbering and milling business in Iowa and in Arkansas, and, in contemplation of breaking up and consolidating his business, came to Texas and selected a point, afterwards known as "Warner's Switch," as a suitable location, provided he could obtain transportation facilities; that he found at that point an abundance of fine pine timber, and, three miles back from the railroad, a stream, known as "Big Sandy Creek," peculiarly adapted to floating logs, and lined for many miles above with pine timber; that in 1874 the defendant's agent, after conversing with him about his experience in the lumber business, the capacity of his mill, and the amount of lumber accessible from the proposed location, made an oral contract with him by which it was agreed that if he would furnish the ties and grade the ground for the switch, the defendant would put down the iron rails and maintain the switch for the plaintiff's benefit for shipping purposes as long as he needed it; that the plaintiff immediately graded the ground for the switch, and got out and put down the ties, and the defendant put down the iron rails, and established the switch, and that the plaintiff, on the faith of the continuance of transportation facilities at the switch, put up a large sawmill, bought many thousand acres of land and timber rights and the water privileges of Big Sandy Creek, made a tram road three miles long from the switch to the creek, and otherwise expended large sums of money, and sawed and shipped large quantities of lumber until the defendant, on May 19, 1887, while its road was operated by receivers, tore up the switch and ties and destroyed his transportation facilities, leaving his lands and other property without any connection with the railroad. His testimony also tended to prove that he had thereby been injured to the amount of more than $50,000, for which the defendant was liable if the contract sued on was not within the statute of frauds.

On cross-examination, the plaintiff testified that when he made the contract, he expected to engage in the manufacture of lumber at this place for more than one year, and to stay

Page 164 U. S. 420

there and to have a site for lumber there as long as he lived, and that he told the defendant's agent, in the conversation between them at the time of making the contract, that there was lumber enough in sight on the railroad to run a mill for ten years, and by moving back to the creek, there would be enough to run a mill for twenty years longer.

No other testimony being offered by either party bearing upon the question whether the contract sued on was within the statute of frauds, the circuit court, against the plaintiff's objection and exception, ruled that the contract was within the statute, instructed the jury to find a verdict for the defendant, and rendered judgment thereon, which was affirmed by the circuit court of appeals, upon the ground that the contract was within the statute of frauds as one not to be performed within a year. 54 F. 922. The plaintiff sued out this writ of error.

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