Indianapolis, Bloomington & Western Railway Co. v. Rhodes

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 objected that the instruction given on behalf of plaintiff was improper. Perhaps it was; but it was not excepted to by defendant. And, still further, it is urged that the court erred in refusing instructions asked for defendant. The record shows that the court did refuse three instructions so asked, and to such refusal exception was taken; but there is no assignment of error for giving or refusing instructions. A motion was made for a new trial, and, being overruled, exception was taken, which is preserved by the bill of exceptions, and on which error is assigned. Under that assignment of error the question is properly raised, whether the evidence is sufficient to support the verdict, the bill of exceptions purporting to contain all the testimony. The action is brought to recover for the breach of an alleged parol contract, on the part of defendant, to construct certain culverts and fences along its right of way through plaintiff’s land. It is indispensable to the right to maintain an action for such breach, that the alleged contract be upon a legally sufficient consideration, which may consist of eithersbenefit to the defendant or detriment to the plaintiff, or the promise will be regarded as-' nudum pactum. And in declaring upon a contract not under seal, and not being a bill of exchange or promissory note, implying a consideration, it is necessary to expressly state the particular consideration upon which it is founded, and if the consideration be not proved on the trial, as alleged, the variance. will be.fatal, if taken advantage of upon the.trial; or, if no legally sufficient consideration be shown by the evidence, a necessary element of the cause of action will be wanting. . Ho error being assigned for refusing an instruction which properly raised the question of variance, this court is limited to the inquiry whether'any legally sufficient consideration to support-the promise was shown by the evidence, or anything yvhich the testimony tended to prove. Two considerations were alleged in the declaration, viz: (1.) Waiver by plaintiff of a right of appeal from decision of commissioners. (2.) An undertaking, on his part, that he would convey the right of way to defendant by good ánd sufficient deed. On the trial the plaintiff testifies, in' his own behalf, (and there is no testimony showing differently) that, at the time of the making the promise, he did not agree to give a deed-r— that there was nothing at all said about it. It is equally clear, from his account of the transaction, that nothing was said about waiving any right of appeal. Indeed, there was no evidence tending to show that,.at the. time of the alleged promise'to make the culverts and fences, he had any right of appeal. Ho record or papers in any condemnation proceedings were produced in evidence. The substance of.the testimony is, that the defendant paid the plaintiff $1000, and, as he says, agreed, besides, to make the culverts and fences. Can it be said that the payment, by defendant to plaintiff, of $1000, was a detriment to the plaintiff and benefit to the de-. fendant ? We. could understand .how that act would support a promise from plaintiff, but not how it will sustain one on the part of the giver in favor of the receiver. The court is of opinion that no legally sufficient consideration for the promise was shown, that it was nudum pactum, and no recovery could be had upon it under the evidence in this record. The judgment will be reversed, and the cause remanded. Judgment reversed.