63 Tex. 524 | Tex. | 1885
The ninth, tenth, eleventh and twelfth assignments of error present the action of the court in overruling defendant’s exceptions to the petition and supplemental petition of plaintiff. Our opinion is that the court did not err in these rulings.
The first and second assignments will be considered together. The negotiation for the right of way and for the sale of the shell took place between the plaintiff and Killeen, the agent of the defendant.
On the trial the plaintiff testified that he distinctly told Killeen, pending that negotiation, that the company could have the right of way for one year only; that he was already forming plans concerning the property which would be inconsistent with the company’s use of the right of way for more than twelve, or, at the furthest, fifteen months. To this the defendant objected on the ground that it Avas a violation of the rule which prohibits the resort to parol evidence to vary or contradict a written contract.
This rule is enforced upon the theory that the “ contract itself is plainly and intelfigibly stated in the language of the parties, and is the best evidence of the intent and meaning of those who are to be bound by the contract.” 1 Greenl. Ev., 13th ed., 276.
But it often happens that the contract is not “ plainly and intelligibly stated ” in the writing. In such cases parol evidence is .admissible, not to contradict or \Tary, but to explain; provided the explanation does not result in making a new contract. And, although this explanatory evidence generally consists of the facts and circumstances surrounding the parties at the time, yet even their language used in the negotiation may be proven to explain doubtful phraseology in the written contract. See 1 Greenl. Ev., sec. 282, and cases cited in note 2, 13th ed; also, 2 Parsons, Con., 560-63. How-eA'er, it is not absolutely necessary to determine whether the admission of the evidence Avas error or not. If it Avas error, it was abstract error and did not harm the defendant. FTor need Ave determine whether the court correctly construed the contract as to the duration of the defendant’s right of Avay, for the reason that the contract and its interpretation are only incidentally brought in issue in the case. The suit is not brought upon the contract, but to recover damages for injuries to the plaintiff’s property by the defendant Avhile in possession of the right of way under the contract. It is not so important, therefore, to ascertain hoAV long the defendant might remain in possession, as to determine what it might do, and what it actually did Avhile in possession under the contract. By its terms the defendant might take “all the shell along the shore from the bridge of said company to the shell bank of Sol. Parr that can be spared from same in safety to the embankment.”
About two hundred yards behind this levee stood the plaintiff’s residence, surrounded by all the appurtenances of a home. Of course the shell bank in his front was a matter of vital importance to him; and it must have been understood by the defendant that the shell was to be so taken as not to cut through or seriously impair the embankment. The plaintiff charges that the employees of the defendant cut through this levee in a number of places in front of his dwelling and elsewhere, so as to let the water in upon his premises at every rise of the tide. These allegations are fully sustained by the plaintiff’s evidence; and are not entirely denied by the witnesses for the defendant.
Indeed, by stating that they did not cut through the levee in many places, they admit that they did cut through it in some places.
From the testimony in the record there can hardly be a doubt that the destruction of this embankment rendered the removal of the railroad track unavoidable; for as soon as the levee was removed the track was swept away with every rise of the tide. Repairing and rebuilding the road became a daily business, and still it could not be kept in condition for use; until, by an arrangement with the plaintiff, it was taken up and placed on higher ground, far in the rear of his dwelling. But all the time that the tide was sweeping away the track of the defendant, it was devastating the homestead of the plaintiff; and the removal of this track did nothing to relieve him from the overflow. We have no doubt that the plaintiff ought to recover damages for the injuries thus inflicted upon him.
The thirteenth assignment is as follows: “The damages allowed by the jury as actual damages to the plaintiff’s premises are grossly excessive, and against the evidence.” This subject is very forcibly presented by counsel, and we have considered it attentively; but we cannot quite agree with them, and therefore we recommend that the judgment be affirmed.
Affirmed.
[Opinion adopted March 20, 1885.]
