The Indianapolis v. Rhodes

• Decision Date: 31 January 1875
• Citation: 76 Ill. 285,1875 WL 8191
• Parties: THE INDIANAPOLIS, BLOOMINGTON AND WESTERN RAILWAY COMPANYv.JOHN H. S. RHODES.
• Court: Illinois Supreme Court

76 Ill. 285

1875 WL 8191 (Ill.)

THE INDIANAPOLIS, BLOOMINGTON AND WESTERN RAILWAY COMPANY

v.JOHN H. S. RHODES.

Supreme Court of Illinois.

January Term, 1875.

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding. This action was assumpsit, in the McLean circuit court, by appellee against appellant, to recover damages for the breach of an alleged parol contract, whereby the latter promised to construct certain culverts and a fence upon appellee's land, and along appellant's right of way through the same. The declaration has but one count, and, by way of inducement, it is alleged that, January 1, 1870, the defendant petitioned the judge of that court to appoint commissioners to assess damages, amongst others, to plaintiff, for the right of way of defendant's railroad across his premises; and the commissioners, having been duly appointed by said judge, agreed to allow plaintiff the sum of $1000 as compensation for the right of way across said premises; whereupon, the defendant, at, etc., in consideration for said right of way across said premises, and that the plaintiff would not appeal from the decision of the commissioners and that the plaintiff, on the fulfillment of the promises and undertakings next hereinafter mentioned, would make a good and sufficient deed of said right of way to the said defendant, promised the plaintiff to pay him the sum of $1000, and to construct, etc. It avers the payment of the $1000, but a failure to construct the culverts and fences. There was a plea of the general issue and Statute of Frauds, the latter plea averring that the supposed promise was not in writing, but to which the court sustained a demurrer. Upon the trial, under the general issue, it appeared, from the plaintiff's own testimony, that at the time of making the supposed contract there was nothing said about his giving a deed for the right of way; and he says, defendant's agent promised to have the culverts and fences constructed, if he (plaintiff) would receive the $1000. No competent evidence was introduced of the condemnation proceedings mentioned in the declaration, nor is there anything in the record tending to show that, at the time of making the alleged promise, the plaintiff had any right of appeal to be waived. The other witnesses, testifying as to the contract, do not vary the facts. There was a verdict for plaintiff, with damages at $1408, on which the court, overruling defendant's motion for a new trial, gave judgment, from which an appeal was taken to this court.

Mr. J. C. BLACK, Mr. L. WELDON, and Mr. T. B. ALDRICH, for the appellant.

Mr. HENRY A. EWING, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

The case argued by counsel, and that presented by the record, seem to be quite different. The testimony, claimed to have been outside of any proper rule of damages, was admitted without objection. No exception was taken to either the admission or exclusion of evidence. The point is argued, that the court permitted plaintiff to amend his declaration after defendant's counsel had concluded their argument. Nothing of the kind is shown by the bill of exceptions. Again, it is...