Mattison v. Chi., R. I. & P. R. Co.

• Decision Date: 08 November 1894
• Court: Nebraska Supreme Court
• Parties: MATTISON v. CHICAGO, R. I. & P. R. CO.

42 Neb. 545

60 N.W. 925

MATTISON

v.CHICAGO, R. I. & P. R. CO.

Supreme Court of Nebraska.

Nov. 8, 1894.

Syllabus by the Court.

Parol evidence is incompetent to prove a contemporaneous oral agreement by which it is sought to change or alter the terms of a written contract, and the result of which would be to change the effect of the written contract in a material portion of it and to insert or read into it a condition or reservation not contained in it or implied by its terms.

Appeal from district court, Cass county; Chapman, Judge.

Action by George D. Mattison against the Chicago, Rock Island & Pacific Railroad Company to compel the specific performance of a contract. Judgment was rendered for plaintiff, and defendant appeals. Reversed.C. S. Montgomery and W. F. Evans, for appellant.

Beeson & Root, for appellee.

HARRISON, J.

September 18, 1891, appellee filed a petition in the district court of Cass county asking a decree compelling a specific performance by the appellant, the railway company, of an alleged verbal contract stated to have been made on or about the 1st of August, 1890, by the terms of which the petition alleges (we here insert what is conceded by the parties to be a substantially correct statement of the issues joined by the pleadings): “The plaintiff was to convey to the defendant a strip of land, 150 feet wide, over and across said northeast quarter of said section twenty-four, for right of way for said railway, and the defendant, in consideration of such conveyance, agreed to pay plaintiff therefor the sum of $500 in cash, and also to construct and maintain in good repair farm crossings across their said line of railway and right of way wherever plaintiff might designate upon said northeast quarter of said section twenty-four.”

It was alleged in the petition that the plaintiff was the owner of said N. E. 1/4 of said section 24, across which the defendant had located and constructed, diagonally from near the northeast corner to near the southwest corner, its line of railway, and it was after the location of said line of railway, but before and with reference to the construction thereof, that the contract in question was alleged to have been made. It was further alleged that the plaintiff had performed the contract on his part, and that “the defendant had entered upon said land, and constructed its line of railway across the same, upon the land so, as aforesaid, conveyed to it by plaintiff.” It was also alleged that the plaintiff had designated a point for a farm crossing over the said railway and right of way, and that he had demanded that the same be constructed and maintained by the defendant, but that defendant had utterly refused “to put in or permit to be put in a crossing at the location designated by the plaintiff, as aforesaid, on said railway.” The defendant by its answer admitted its corporate capacity, that it was the owner of the railway in question, that the plaintiff was the owner of the land described, except the portion upon which the railway was constructed, and which had been conveyed by the plaintiff to the defendant, but specifically denied “that it at any time ever promised to or agreed with the plaintiff that it would construct at any place on the road described in plaintiff's petition, or any part thereof, or at any other place, a crossing over said railroad.” Further answering, the defendant alleged “that during the year 1890 the defendant located its railway over and across the northeast quarter of section twenty-four, township 12 north, of range 10 east, in Cass county, Nebraska; that thereafter, and on the 20th day of August, 1890, the plaintiffherein, George D. Mattison, and Laura Mattison, his wife, sold in consideration of $500, and by deed of general warranty conveyed unto this defendant, all that part of said northeast quarter described as follows [then followed the description of a strip of land 150 feet wide, running through the said quarter section diagonally, as aforesaid, and upon which the railway was constructed, 50 feet lying north of the center of the railway and 100 feet south]; that thereafter the defendant entered upon said strip of land hereinbefore described and conveyed by said George D. Mattison, plaintiff, and his wife, Laura Mattison, to the defendant, as aforesaid, and built and constructed its railroad thereon, and has, at all times since, and is now, operating the same thereover.” The defendant further alleged “that thereafter, and on the 31st day of October, 1890, the plaintiff, George D. Mattison, and his wife, Laura Mattison, in consideration of the sum of $370.50, sold, and by a deed of general warranty conveyed, to the defendant,” an additional strip of land 150 feet wide, adjoining and lying immediately north of the 150-foot strip across the southwest quarter of the northeast quarter of said section of land, and that at the time defendant's answer was filed it was, and at all times since the conveyance of said strip of land had been, the absolute and unqualified owner of said strips of land. Copies of the said deeds of conveyance of said strips of land were attached to the answer and made a part thereof.

In reply the plaintiff denied “that the sum of $500.00 was the sole consideration moving to plaintiff for the execution of the deed described in said answer as ‘Exhibit A,’ but avers the fact to be that a crossing was to be granted to plaintiff, as stated in his petition, in consideration of said conveyance, but that it was not set out in said instrument.” “Exhibit A,” referred to, is the deed of the first strip above mentioned and referred to in answer. Further replying, the plaintiff denied that the defendant was “the absolute and unqualified owner of the strip of land described in its answer,” but averred “the truth to be that by virtue of the contract between the parties to this suit, as described in the petition, this plaintiff has an easement of a farm crossing over and across said land and railway, as set out in the petition.”

“Exhibit A,” attached to the answer, which was one of the deeds executed by appellee and his wife and delivered to the company, read as follows: “Know all men by these presents, that we, Geo. D. Mattison and Laura Mattison, husband and wife, of Cass county and state of Nebraska, in consideration of the sum of five hundred dollars, in hand paid by the Chicago, Rock Island & Pacific Railway...