Kankakee & South Western Railroad v. Fitzgerald

Conger, J. The contract granting the right of way through appellee’s farm and defining the duties of the company in reference to fencing, was under seal, and could not be modified, changed or enlarged by parol. Chapman v. McGrew, 20 Ill. 101; Hume v. Taylor, 63 Ill. 43; Barnett v. Barnes, 73 Ill. 216. Hence, it follows that the admission of parol evidence, to show that at the time of the delivery of the deed there was a verbal agreement entered into between appellee and the agent of appellant that the fences should be built before the railroad was constructed, was error. The rights of the parties were fixed by the sealed contract of July 10th, and the attempt to show by parol the promise and undertaking of the company at the time of the delivery of the deed, must of necessity be a modification of the terms of that contract, or, an attempt to show a new and distinct agreement which would require a new consideration to support it. There was no new consideration, for appellee was required by his contract of July 10th to execute a deed upon the receipt of the §500; therefore the delivery of the deed was but the compliance upon the part of appellee with his duty, and could not form a consideration for a new and independent agreement. The contract of July 10th, failing to fix definitely the time within which the fences were to be built, the law supplies the omission by saying it should be done within a reasonable time, and that is a question of fact to be determined by the jury from all the circumstances of the case. It may be they would consider such reasonable time under all the circumstances of this case to be, when the company took possession of the land for the purpose of constructing its road; but we think the court should have left this question to them, and not attempted by instructions, to define it. We think the evidence in reference to the expense of herding appellee’s cattle through the winter to prevent their destroying the corn, was improperly admitted. The immediate damage to the corn, done by appellee’s cattle, if caused by the wrongful tearing down of appellee’s fences by appellant, and until such reasonable time as appellee could take measures to protect himself, would be proper for the consideration of the jui'y- In addition to that, the measure of damages would be the value of the pasture lost, and such other reasonable expenses as appellee would incur in removing his stock to another pasture. It was appellee’s duty to make his damages as small as ho reasonably could under the circumstances. It is not reasonable to suppose that if appellee had been endeavoring in good faith to protect his crops by the smallest reasonable outlay of money, he would have permitted them to run in a field with (as he claims) an insufficient fence to keep them from destroying his crop, and employed herders through the winter to watch them. The principle is well defined in Loker v. Damon, 17 Picl. 284, where the court say : “ In assessing damages, the direct and immediate consequences of the injurious act are to be regarded, and not remote, speculative, and contingent consequences, which the party injured might easily have avoided by his own act. Suppose a man should enter his neighbor’s field unlawfully, and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner oces the gate open, and passes it frequently, and willfully or obstinately, or through gross negligence, leaves it open all summer, and cattle get in, it is his own folly.” If the damages to appellee’s tile drain was a necessary consequence of a proper construction of the road bed, the company would not be liable therefor, as they are by the contract of July 10th, expressly released “ from all claims for damages done or committed to my (appellee’s) land in the construction of said railroad.” If, on the contrary, such drain was wantonly, or negligently injured by the company without it being necessary so to do, then the measure of damages would be the expense of repairing it. The company offered to pay the expenses of such rejiairs, brought the tile upon the ground and authorized appellee to enter upon their right of way and have the drain reconstructed. Appellee can not, under such circumstances, stand idly by and permit his ground to be overflowed and his crops destroyed, and seek to hold the company responsible. The doctrine already alluded to, that it is always one’s duty to make his damages as small as he reasonably can, seems to be peculiarly applicable to this branch of the case. It is urged that the claim for damages for failing to fence, must necessarily be made in an action ex contractu, and could not therefore be recoverable in this form of action. This objection is not well taken, as it is held in Conger v. C. & R. I. R. R. Co., 15 Ill. 366, that an action on the case will lie in an action similar to this. From a careful inspection of the record, we are unable to find any replication to, or joinder of issues upon, any of the pleas filed; but under the authority of Seavey v. Rogers, 69 Ill. 534, we have not regarded this as fatal, but upon another trial let the issues be settled before submitting the case to the jury. For the errors indicated the judgment will be reversed, and the cause remanded. Reversed and remanded.