10 Or. 162 | Or. | 1882
By the Court,
The appellant brought this action to recover the sum of $70 alleged to have been overpaid to the respondent by mistake. The facts relied upon by the appellant, to establish the overpayment were in substance as follows: The appellant, a railroad company, had commenced an action in the circuit court for Marion county to condemn a certain portion of respondent’s land for a track for its railroad. Pending the action, and before a trial had been reached, it paid the respondent, through its agents, the sum of $70 under a written agreement, signed by such agents, as well as by the respondent, by the terms of which tlie latter was to allow the company to use so much of his land as it needed for a track for its road until a decision could be obtained in such action. The $70 to be deemed as paid on account of any judgment for damages the respondent might recover in such action, and if it should prove to be greater in amount than such judgment, he was to repay the excess. Afterwards, judgment was entered upon consent of the parties in open court, for the condemnation of the land, in favor of appellant, and for $150 damages, and $50 costs, to respondent, which amounts were at the time paid to the respondent. The appellant claimed this last payment was made in ignorance of the former, and by mistake, and that in equity and good conscience the respondent ought to repay the amount so overpaid him.
The respondent denied there was any mistake or overpayment, and alleged, in effect, that said judgment ivas entered, and the amount thereof paid over to him in pursuance of an agreement entered into between himself and the appel
Upon this issue, the cause was submitted to a jury, who found for the respondent, and a judgment was rendered in his favor for costs. The main objection urged by the appellant’s counsel to secure a reversal of this judgment, and the only one which, in our opinion, it is in a position to make on the appeal, is that the court below, on the trial, admitted evidence on the part of the respondent to establish a parol agreement in terms corresponding with the agreement set up in his answer.
It has been urged in support of the objection, that the admission of this testimony was a violation of the cardinal principle forbidding the introduction of parol evidence to vary or alter the meaning' of written contracts. But it had no such effect as to the previous written agreement. For it was a new and distinct agreement, and, if supported by a sufficient consideration, supplanted the previous written one. (1 Greenleaf on Ev., secs. 303 and 304.) And the compromise of the action to condemn the respondent’s land for the use of the railroad company, and his acceptance of a sum certain as damage and costs, when possibly he might have prevented any condemnation, or have recovered a much larger amount' as damages and costs, was undoubtedly a valid consideration for the parol agreement.
“It is indeed necessary that the consideration should be of some value, but it is sufficient, as we have said, if it be of slight value only, or even if it be such as could be valu
The respondent’s consent to the entry of the judgment just as it was, was the consideration for the parol agreement by which he was to have the $70 already received, in addition to the^ amount of such judgment. If he did agree, as the judgment recites, that his actual damage was only $150, it was not equivalent to a declaration that he was only to receive that much regardless of the terms of the compromise, in accordance with which such judgment was entered. There was no contradiction of the terms or meaning of the judgment in the respondent’s claim under the parol agreement. On the contrary, we think there is perfect consistency between them, and that the parol agreement, if proved, which was for the jury to determine, was a good defense to the action.
We have discussed this question on the assumption that
Judgment affirmed.