157 Pa. 174 | Pa. | 1893
Opinion by
This action was brought by appellant to recover damages for Ms land taken by appellee for the right of way of its railroad and for the injury to the water power of his mills in consequence of its construction. The appellee, while contesting the amount of the damages, contended that, when ascertained, they were payable in its capital stock at par, as provided in the agreement made between the parties. By this agreement it is agreed on the part of the appellant as follows, viz.: “ I will release to the company which undertakes to construct such road the right of way of lawful width through my land in Orange township, Columbia county, Pennsylvania. The damages to be assessed when the road is located, and the amount of such damages to be paid in stock in said railroad. Cost of fencing not included in
The counsel for appellant, with their ingenuitjr stimulated by a second trial, raise no less than sixty-four assignments of error. They may however be substantially grouped in three classes: (1st) those relating to the measure of damages; (2d) those relating to the agreement; and (3d) those relating to the manner of the payment of damages.
The appellant himself testified, “ that before the construction of the railroad the market value of the whole property was $12,000 and afterwards $5,000.” While on cross-examination he admitted that upon the former trial he had advanced the latter amount considerably. The amount of the verdict indicates very clearly that the jury applied the rule thus laid down to the proof. In view of the testimony that appellant received from the contractor compensation for delay in the operation of his mills during the construction of the coffer dam, the assignments of error for the rejection of evidence to prove the damage arising from it cannot be sustained. Nor those which relate to the rejection of the evidence of the value of the property at an intermediate time and before the completion of the road, because the measure of damages is as stated and is not a shifting one. The admissions of the deposition of U. S. Lutz, of the testimony of M. Shaffer, of evidence as to the leakage of the old dam, as to the cost of deepening and widening the pool and dam, as to repairs to the dam, and the conversation of appellant in regard to the removal of materials in the coffer dam, assigned as error in the various assignments, were proper, because the deposition of Mr. Lutz was offered to show the location and dimensions of the old and new race, because the testimony of Mr. Shaffer related to the construction of the new dam, in the
The assignments of error in affirming appellee’s sixth, seventh, eighth, tenth and twelfth points must fail, for the reason that substantially questions of fact were thus submitted to the jury to determine whether the enlargement of the race together with the dam was done with the knowledge and acquiescence of appellant, whether the change had materially affected the capacity of the mills and whether the course of the water under the railroad bridge would be impeded. It is manifest these were questions of fact, and in affirming appellee’s points were properly submitted to the jury.
The amount of damages thus ascertained, the next question involved in this case, relates to the manner of their payment. In the first trial the appellant’s contention was mainly directed to the point that the agreement by reason of the injury to the water power was rescinded and that the appellee had forfeited its rights under it, while that of the appellee, to the payment of damages in stock, except those arising from injury to the water power. Now however, in view of the interpretation placed upon it by this court, they have materially altered their positions. On the one hand appellant denies generally the contract, while on the other the appellee alleges that all the damages are payable in stock. The impeachment of the agreement is pressed upon various grounds. It is contended that there was in fact no agreement made, but merely a proposal, and no notice of its acceptance shown bjr appellee. The appellant, the owner of two mills (saw and grist), and of a fa'rm, was naturally interested in the construction of a railroad in his immediate neighborhood. This is shown by the testimony of Mr. Jamison, who testified that “ he (appellant) always seemed extremely anxious to have the road built and talked a great many times about it,
The appellant further contended at the time of the execution of the agreement, it was agreed that the railroad should be constructed on the west side of the creek and that this collateral parol agreement induced its execution; that by reason of the construction on the east side of the creek it was void, and he became therefore entitled to the payment of damages in money. Where a written contract plainly expresses the deliberate intent of the parties, without any uncertainty, and indicates thus the whole engagement, it cannot be contradicted or varied by parol testimony, except in certain well defined instances which are stated by Mr. Justice Paxson in Phillips v. Meily, 106 Pa. 536, to be : “ First, where there was fraud, accident or mistake in the creation of the instrument itself; second, where there has been an attempt to make a fraudulent use of the instrument in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed.” These exceptions, because of the significance of the writing in defining with certainty the engagements of the parties, require, in order to be established, proof of a clear, indubitable and precise character. In Thorne v. Warfflein, 100 Pa. 519, it is said: “ It is not enough that there are parol stip
As the proof here was not of this character the learned trial judge properly withdrew it from the jury. The appellant, the only witness upon this subject in his own behalf, testified that when the paper was signed the understanding was the railroad was to be on the west side of the creek. He said: “ I don’t know that the words were put in on this side of the creek but that was the agreement between us. Then he signed it. That was all of the conversation. The agreement was that he was not to come on the east side of the creek.” The object of this proof was to modify the agreement almost to the extent of a substitution of a new one. The west side of the creek where the appellant owned a narrow strip of land of the width as stated of two rods insufficient for the statutory width of the right of way designated in the agreement as “ lawful width ” is in Mount Pleasant township, while the east side of it where the mills, buildings and farms are is in Orange township. The agreement specifically states “through my lands in Orange township ” (that is on the east side), and makes a provision in regard to damage to buildings, race,, or water power which were on the east side. An agreement thus clear, certain and specific should not be permitted to be contradicted or varied, as claimed, upon the uncorroborated testimony of appellant. To hold so would be practically to sweep away written contracts, destroy their value and substitute in lieu of them loose conversations and verbal understandings.
In North and West Branch Railway Co. v. Swank, 105 Pa. 561, it is said: “ Swank was the only witness who testified in support of the alleged ‘ representations or misrepresentations ’ which, if established, change the terms of the written contract, or, as submitted, actually set it aside. His testimony is uncorroborated — the allegation is denied by the other party and some testimony adduced of its untruth. Were the defendant in error in a court of equity, asking that the contract be reformed or
In Pennsylvania Railroad Company v. Shay, 82 Pa. 198, it is said: “ It has been more than once held that it is error to submit a question of fraud to the jury upon slight parol evidence to overturn a written instrument. The evidence of fraud must be clear, precise and indubitable, otherwise it should be withdrawn from the jury.”
In Thorne v. Warfflein, supra, it is said: “We have gone very far in permitting parol contemporaneous evidence to defeat written instruments. To go further would be practically to abrogate the rule. The distinctions are fully and clearly set forth in the opinion of Mr. Justice Williams, in the case "of Martin v. Berens, supra, and as there stated they meet with our approval. He sums up the subject in the following terse and effective words, to which we agree: ‘ Where parties without any fraud or mistake have deliberately put their engagements in writing, the law declares the writing to be not only the best but the only evidence of their agreement, and we are not disposed to relax the rule. It has been found to be a wholesome one, and now that parties are allowed to testify in their own behalf, the necessity of adhering strictly to it is all the more imperative.’ We cannot agree that it is proper to throw the whole case into the jury box on the ground of fraud, simply because one of two parties to a written contract testifies that there were parol stipulations contradictory to the terms of the writing agreed to at the same time.”
While appellant was uncorroborated he was in point of fact contradicted by Mr. Conner, the other person living who was present at the execution of the paper. He testifies positively there was no agreement “ not to come on the east side of the creek.” With the appellant’s testimony uncorroborated and in fact contradicted there was no evidence to be submitted to the jury to vary or contradict the agreement. As it is not impeachable, with its damages assessable after the construction
The agreement provides that the damages shall be paid “ in stock in said railroad.” The par value of the stock was $50.00 per share. A subscriber to the stock of a railroad companjr takes it at its par value. A secret agreement, with an agent obtaining the same, to pay less would not be enforceable : Miller v. R. R., 87 Pa. 95. When therefore this agreement provides that the appellant shall take stock in the company for his damages, it clearly means that he is to take it, as others take it, at its par value. A definite and fixed value was thus 'intended, and not a varying one depending upon the changes of the market as to Value.
But it is contended that the damages for injury to the water power were payable in money, because, on the former trial, one of its counsel having made an admission to that effect, the appellee is estopped from denying it. In the former trial the contention in regard to the agreement was to a grea/t extent one of construction. The interpretation of it has been finally determined by this court. An erroneous admission in regard to it by counsel upon a former trial as a matter of law will not estop his client from denying it in a second trial: Hill v. Epley, 81 Pa. 331; Dungan v. Ins. Co., 52 Pa. 253. An equitable estoppel by matter in pais rests upon the basis of refusal to permit a party to assert what his previous conduct had denied, where another had acted on the faith of such denial and altered his condition. The position of the appellant has no such support. During the trial and subsequently he neither accepted nor acted upon it; he was not by reason of it induced to change his position nor was he misled by it. Having fixed his course by his own compass, he continued in it without deviation. It may in fact be said that here the essential elements of estoppel as stated in Eldred v. Hazlett, 33 Pa. 307, are lacking, and therefore this assignment of error cannot be sustained, nor can it be as corroborative of appellant’s testimony, because the admission relative to damages to the water power on the
The appellant agreed to receive in payment for his damages stock at par without regard to its market value, and the evidence of such value, as well as to the mortgages placed upon the railroad tending to affect its value, was properly excluded. It may be the stock may not be valuable at the present time, and as a consequence the appellant may suffer a hardship. But having by his contract made the law governing the case, he is alone the cause of it. It is not the first instance where the value of a contract has been miscalculated. As the damages were payable in stock the verdict was directed to be in stock and was rendered accordingly. This is assigned as error because the verdict is unresponsive to the issue and is not enforceable. As counsel, by an agreement, in writing filed, “ that this action be tried without objection to form or substance of plaintiff’s statement • or defendant’s plea, that all matters of legal demand and all matters of defence lawfully admissible under any form of pleading shall be admissible as if formally set forth by declaration or plea,” broadened the issue to all matters in controversy, the verdict is clearly responsive and its performance can be enforced. Under its equity-able powers the court can by the control of its execution enforce it. In the case of Pierce v. Marple, 148 Pa. 69, where the contract was to pay in lime, Chief Justice Paxson said : “We are of the opinion that the evidence referred to should have been received, and if the jury found the plaintiffs were to take their pay in lime such fact should have been found specially and incorporated in the verdict. The court would have then been enabled to control the execution, and if defendants should refuse to pay in lime could permit the execution to go for money.” The verdict is for damages for plaintiff for $5,200, with in terest payable in capital stock of defendant, and is thus for a specific sum to be paid in stock; and if not so paid execution may be issued for the money. It differs essentially from Bruck v. Mausbury, 102 Pa. 35, where a verdict was “ in favor
As the assignments of error are not sustained this judgment is affirmed.