74 Pa. 208 | Pa. | 1874
The opinion of the court was delivered, January 10th 1874, by
This case turns on the alleged agreement made by Mr. Phillips, the president; in behalf of the railroad company, to erect a freight and passenger depot on the one acre of land sold by the plaintiff to the railroad company for the sum of $1000. .The other portions of the agreement relating to the wall and
In what respect does the agreement to erect the depot contradict the release ? We can perceive none. It does not contradict the consideration of one dollar paid by the company: that money might be paid and the contract also be made to build the depot. Indeed, the nominal consideration in the release would lead to a ready inference, that something else was the consideration of a right of way through a mile and a quarter of land. It does not contradict the terms of the release itself. These are all admitted by the plaintiff, and indeed he rests upon them as the reason and consideration of the railroad company’s promise to erect the depot. In no respect can we perceive that the plaintiff gainsays or desires to disprove or alter the release. On the other hand, it does not seem to follow, because the railroad company agreed to pay a nominal consideration of one dollar, that they did not promise to do something else as an equivalent for the right they obtained. The agreement to erect the depot is independent and executory— something to be done in the future; and does not conflict with the release. Both may stand together. The case of Weaver v. Wood, 9 Barr 220, is directly in point on this question. To this may be added Hayden v. Mentzer, 10 S. & R. 323; Strawbridge v. Cutledge, 7 W. & S. 394. The court erred, therefore, in the measure of proof, which, said the court, must be clear, strong and indubitable.
The next question is upon the effect of the agreement. The contract for the depot, when found by the jury, would stand before them with equal effect, as if it had been reduced to writing, and then arises the question of damages. The court below held the measure of damages to be the same as that given to the owner of land taken by the company under a legal proceeding ; that is to say, the difference in the value between what his property was
Judgment reversed, and a venire facias de novo awarded.