Michigan Midland & Canada Railroad v. Bacon

Marston, J: This case in its main features resembles and must be governed by Stevens v. Corbitt, supra, p. 458. It, is further insisted in this case that the promise was made to the Michigan Midland Railroad Company, which never finished the road or opened it for traffic. That company, after the contract in this case was made, commenced the construction of the road, but being unable to complete the same, it made an assignment in November, 1873, to plaintiff in error, of that portion of the road referred to in the agreement of Bacon, together with all its franchises and property of, in and to said portion of the road, and a further assignment of the agreement sued upon was afterwards made. The plaintiff in error, therefore, became the successor and assignee in that portion of the Michigan Midland Railroad Company’s road and franchises, including the agreement in question. Bacon promised to pay that company, its successors or assigns, and [468] we know of no legal impediment in the way of enforcing the agreement which he made. From a reading of his agreement it would appear to have been a matter of small importance to him what corporation built the road and opened it for traffic, if it was only built and opened. It. was the building and opening which was considered the essence of the agreement. It is also suggested that at the time the agreement was obtained the road was surveyed and located about half a mile from defendant’s farm, and that he said, at- the time the note was given, he would aid in building the road on that account, but that the road was afterwards changed and built across his premises, wliich was a damage to him. There undoubtedly might be such a change made in the location of the line of a road as would warrant the party making the promise in withdrawing it, where it would be apparent that he would lose the advantages which he expected to accrue to him from the building of the road. We are not prepared to say, however, that the change in this case was of that nature. There was no such condition in the agreement itself. Indeed the court does not find that what was said upon that subject at the time of entering into the agreement was considered at all material, or was any thing more than a mere casual remark. Nor does it appear that defendant made any objections to the proposed change, or made any effort to withdraw his promise of aid on that account. Besides, if the change was any injury to him on account of running across his lands he had a remedy for such damages as he suffered thereby, independent of this agreement. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.