Louisville, St. L. & T.R. Co. v. Neafus

• Decision Date: 22 March 1892
• Citation: 93 Ky. 53,18 S.W. 1030
• Parties: Louisville, St. L. & T. Ry. Co. v. Neafus et ux.
• Court: Kentucky Court of Appeals

18 S.W. 1030

93 Ky. 53

Louisville, St. L. & T. Ry. Co. v. Neafus et ux.

Court of Appeals of Kentucky.

March 22, 1892

Appeal from circuit court, Meade county.

"To be officially reported."

Action for breach of contract by G. L. Neafus and wife against the Louisville, St. Louis & Texas Railway Company. Verdict and judgment for plaintiffs. Defendant appeals. Affirmed.

Lewis J.

Appellees husband and wife, brought this action to recover of appellant damages for breach of contract. It is stated in the petition that they are owners of a tract of land in Meade county, and proceedings for fixing their compensation in damages for way of appellant's railroad over it being then pending, a contract was made between the parties whereby appellant agreed that, if they would convey to it for such way a strip 80 feet wide through the land, and another 70 feet wide and 1,200 feet long, it would construct and maintain on the latter strip a depot station; that they, in pursuance of the contract, did June 27, 1887, execute and deliver the required deed, and under it appellant immediately took possession of both strips, and built thereon and has since operated its railroad; yet, though requested, has refused to construct and maintain the depot station as agreed. In the answer it is alleged the real consideration for the agreement on the part of appellant is the one recited in the deed, not that stated in the petition. And counsel now contend no action can be maintained on the parol contract set out in the petition because it became merged into the written contract, upon which only can an action for the cause alleged be based. The error of that argument arises from confounding the agreement of the appellant with the consideration for it. It does appear from the deed that the strip of 80 feet, on which is built the main track, was conveyed for the recited consideration of "benefit to be derived from the building of the road and one dollar paid," while a grant of the 70 feet is the only expressed consideration for the agreement or undertaking of appellant. But there is no dispute of the alleged parol contract having been made and complied with by appellees, nor variance between the petition and deed in respect to the terms or import of appellant's undertaking; for in the deed it is expressly stipulated that "the Louisville, St. Louis & Texas Railway Company agrees and undertakes to construct and maintain on said 70 feet a side track and depot station." Consequently whether the consideration for the agreement or undertaking by appellant was as stated in the petition, or as expressed in the deed, is not a material inquiry, except in determining the measure of damages for the breach that appellant does not deny it was guilty of. Nor would recital of the consideration in the deed, even if the action was based upon it, instead of the parol contract, be at all conclusive of the question; for there is no rule better settled by this court than the one allowing a party to show, by parol evidence, a consideration in addition to or different from that expressed on the face of a deed or other written memorial of the contract. We therefore see no reason why this action may not be maintained on the parol contract set out in the petition and the true consideration for appellant's undertaking be shown, even in contravention of recitals on that subject in the deed, which appears to have been executed simply in compliance with appellee's part of the contract. And in this connection it is proper to say that on the trial the evidence was conclusive; the real consideration was as stated in the petition. Before answering, appellant moved the court to require certain blanks in the petition filled, and refusal of that motion is made a distinct ground for reversal. But, as the motion was made seemingly upon the assumption that the amounts left blank related to matters of special damages, we will consider it in connection with instructions to the jury also complained of; though it is not necessary to refer to such parts of the petition as were stricken out, nor to that portion in regard to which neither evidence was offered nor instructions given.

The instructions are as follows: (1) "The plaintiffs are entitled to recover, and the jury should find for them the damages, if any, they may have sustained because of the defendant's failure to construct and maintain a side track and depot station on the strip of ground 70 feet wide referred to in the pleadings; and, in addition thereto, the damages, if any, they may have sustained by the building of the defendant's railroad through their lands on the strip of land 80 feet wide referred to in the pleadings." (2) "The measure of damages the plaintiff is entitled to recover under instruction No. 1, if any, is difference in the market value, if any, of the...