Bertsch v. Lehigh Coal & Navigation Co.

The opinion of the Court was delivered by Kennedy, J. We think that the plaintiff ought to have been permitted to have given the evidence contained in his first offer, so far as it tended to prove that at the time the agreement was made and entered into between the plaintiff and the defendants, which the latter have pleaded as a bar to this proceeding of the former, the line or route of the canal was then laid out and designated by stakes set up through the plaintiff's land, and that the written agreement which has been set out by the defendants in their plea, was made in reference to that line, and that the land lying between it and the river is the same land that is described in the said agreement; and that the defendants instead of confining themselves to this line as there staked out, in constructing and making the canal, or at least keeping between it and the river, extended the canal beyond the line, and further from the river, into the other land of the plaintiff, and thus cut off a greater quantity of land from the main body of his farm than was agreed on, or embraced in the agreement set out by the defendants in their plea. So far as the plaintiff offered to give evidence to this effect, we think it was admissible, because it cannot properly be considered testimony which would go to contradict, alter, add to, or detract from the written agreement between the parties; but tended to explain the same by giving locality and identity to the subject-matter and applying the contract to it, which is every day’s practice. See 13 Petersdorf’s Abr. 108, note. As often as written agreements fail to describe by metes and bounds the lands contracted for, and to give a precise locationto them, the omission is always supplied, and the application of the agreements made to the lands by the introduction of parol evidence, which has ever been considered competent; otherwise, in most cases the agreements could never be carried into effect. The evidence which the plaintiff offered to give, to show that the defendants agreed to build two locks upon that part of the canal which passes through his land, as a part of the consideration he was to receive for parting with his land to the defendants, was of a different character, and went to establish a very different agreement be [140] tween the parties from the one reduced to writing and set forth by the defendants in their plea. This evidence we think was properly rejected by the court; ior to have received it, would have been in direct violation of that rule so well established, that parol evidence is not admissible to contradict, alter, add to or diminish, a written instrument. The other testimony offered by the plaintiff, and rejected by the court, was not admissible ; some of it, because it did not fall within the provisions of the third section of the act to improve the navigation of the river Lehigh, which is the section under which this complaint was originated and must be sustained if at all. It would rather seem to be within the terms of the fourth section of that act; and as to the residue of the evidence rejected, it appears to me that it was not admissible upon any ground of complaint. If the plaintiff did sustain any such damage as he alleged for the introduction of it, I am inclined to think it was damnum sine injuria. As this cause is to go back to the Circuit Court for a new trial, it is proper to notice the opinion which was delivered by that court in respect to the mode of proceeding in this case to which the plainiff has resorted after having made an agreement with the defendants which they have set forth in their plea. The judge in the Circuit Court was of opinion that this course of proceeding could only be adopted and pursued under the provisions of the act already referred to, where the parties could not agree upon a compensation. In this we think his Hon-our was right. But we also think that where an agreement has been made between the company and the owner of the land for compensation, as in this case, that if the company should afterwards, without regard to such agreement go on and make their canal through the land of the owner, on ground contrary to, and different from that which was agreed on, as is alleged was done here, the owner of the land would thereby be at liberty to rescind the agreement. Beside, it is quite obvious, if what he proposed to give evidence of, be true, that an action brought by him against the company for a breach of their covenant could not afford him adequate redress, because the land occupied by the canal and cut off from the main body of his farm, is not all included and bargained for in the agreement. If, however, the plaintiff upon the next trial should fail to make sufficient proof to convince the jury that the company violated their agreement in departing from the ground agreed on for the line and course of the canal, he must fail entirely to recover anything in this proceeding. He must then look to his agreement, and be content with the compensation provided for by the terms of it. If it was fairly made, and has been observed and kept on the part of the company, the plaintiff is bound by every principle of honour, law and justice to abide by it on his part, whether it was a bad or a good bargain for him. The judgment of nonsuit set aside, the cause reinstated, and remanded to the Circuit Court.