| Colo. | Jan 15, 1893
delivered the opinion of the court.
A question is raised with reference to the form of defendant’s pleadings, but as the determination of such question can in no way affect the result, the merits of the controversy will be considered without any reference to it.
Counsel for defendant offered evidence at the trial, tending to show that it was orally agreed that the road should be constructed through Crooked Canon, at the time the written contract was executed. In other words, the claim is that a written agreement to locate the line within the canon upon certain express conditions can by parol be changed to an absolute agreement to do so. The rule that a written contract cannot be varied or contradicted by evidence of a contemporaneous oral agreement is elementary. This rule precludes the admission of the evidence proposed. The written contract provides that said road shall be located through .Crooked Canon, “ if upon survey it be found practicable to there locate and construct a line which can be afterwards conveniently operated, and provided further that the said line through Crooked Canon can be constructed at an expense of not more than $1,000 in excess of the expense of ‘ constructing the same without the said canon.” This agreement, providing as it does for a survey as a basis for the location of the line, and for the construction of the line without the canon, if certain conditions are found to exist, will not admit of such proof. By the oral evidence proposed, it is attempted to show that the canon location was certainly and definitely agreed upon, to the exclusion of the route outside of the canon. This is in direct contradiction of the terms of the written agreement. If such proof is admissible under the claim of fraud, then any oral agreement would be admissible to vary and contradict the terms of a written contract. This
As this is the only proof of fraud to be found in-the evidence, and the consideration for the written contract sufficiently appearing, but one question is left for review. It was contended bjr defendant that ño practicable route for the road! could be found within the canon. This was disputed by the testimony of witnesses introduced by the plaintiff. The record displays a large amount of conflicting evidence upon this question of practicability, and complaint is now made because-the.trial court failed to determine upon which side lay the preponderance. The determination of this question is entirely unimportant, the court having found from the evidence that to build any line that could be operated within the canon would necessitate the expenditure of more than $1,000 over and above the cost of the constructed line outside the canon.
It being shown that the latter route is practicable, and the written contract providing as it does that a line was only to be constructed within the canon in case the expense to be incurred thereby should not be more than $1,000, in addition to the expense of constructing the line outside of the canon, the plaintiff was released from constructing the line within the canon by the express finding of the court upon the question of cost, this being.one of the conditions of the written contract Upon which the plaintiff had a right to rely.
The defendant without doubt failed-to realize the benefits which were expected to result from the construction of the railroad. ■ The courts cannot, however, afford relief, as this would necessitate the making of a new contract for the parties in place of the. one they deliberately entered into.
Although there is serious conflict in the evidence as to the amount of the additional expense required to build a railroad
Affirmed.