#### Lohr *v.*Somerset & Cambria R. R. Co.

In an action of assumpsit by a land-owner for payment for land deeded to a railroad company in consideration of one dollar and the general advantages accruing by reason of the location of the road, where plaintiff claimed that, at the time the deed was made, there was a parol agreement as an inducement for him to sign the deed that the company should pay him what the land was worth, and for fencing and damages, the supreme court will not disturb a judgment entered on a- verdict for defendant, where the case has been properly submitted to the jury on conflicting evidence as to whether such parol agreement was made or not.

In such an action, there could be no recovery for mere inconvenience to plaintiff, as his claim was based on the alleged promise, and therefore the jury could not consider either the advantages or disadvantages arising by reason of the construction of the road.

*Not decided,*whether the amendment at the costs of plaintiff, in this case, was proper, under the Act of May to, 1871.

May 10, 1888.

Error, No. 320, Jan. T., 1888, to C. P. Somerset Co., to review a judgment on a verdict for defendant in an action of trespass on the case by Pearson Lohr against the Somerset & Cambria R. R. Co., at Jan. T., 1883, No. 171. Gordon, C. J., and Trunkey, J., absent.

Plaintiff’s declaration set forth that, on Oct. 29, 1879, the defendant corporation induced plaintiff to execute a deed of release of a strip of land four rods wide, for its railroad track, agreeing to pay a fair and just compensation for the-same, and to fence its line or pay the plaintiff sixty cents per rod for fencing, and pay plaintiff all damages sustained by him from the construction of the road; that plaintiff had performed his share of the contract and that defendant had taken and occupied the land, but, contriving and intending to defraud the plaintiff, it had not performed its promises, but thereby craftily and subtly deceived the plaintiff into signing, executing and delivering said deed of release, and, although defendant had taken possession, etc., refused to pay plaintiff for the land taken and the damage caused him, specifying, as elements of damage, the price of the land and fences, digging holes in other parts of the land and obstructing the road leading to the coal bank, wherefore, etc.

The defendant pleaded not guilty and gave notice of special matter to the effect that, on Oct. 29, 1879, the plaintiff executed to defendant a deed for the right of way over his land, which had been duly recorded; that a station-house had been built near plaintiff’s land, and that the plaintiff, in consideration thereof, had released defendant from all damages, and that the advantages derived by plaintiff from the building of the road were in excess of the value of the land taken, fencing and all damages suffered.

The praecipe, writ and docket entry were in the form of trespass. The declaration recited the writ as “ case.”

When the case first came on for trial, counsel for plaintiff proposed to prove that defendant built and constructed a road over the plaintiff’s land, the damages sustained thereby, and that defendant’s entry on said land was in pursuance of a paper signed by plaintiff, which said paper was signed by plaintiff by reason of fraud and *508misrepresentation on the part of defendant, and was obtained for fraudulent purposes. Also, that plaintiff was induced to sign said paper on the positive assurance of defendant or its agent that the defendant would pay the plaintiff by the acre for all land taken whatever it was worth, and by the rod for the fencing required, and that defendant would pay all other damage sustained by plaintiff, upon the faith of which promises the paper was signed.

To this offer defendant objected, inter alia, for the following reason, viz: “ The evidence is not admissible under this form of action; the praecipe, writ and docket entry being in trespass.”

The court sustained this objection, but no exception was taken.

The plaintiff then moved to amend the record by adding the words “ on the case ” after the word “ trespass.”

By the Court: “Amendment allowed Dec. 12, 1884, in accordance with the Act of May 10, 1871, § 1, which makes payment of costs compulsory on party moving for amendment, and it is so amended at costs of plaintiff.”

Plaintiff excepted to the order for payment of costs. [15]

On.the second trial, plaintiff put in evidence the deed from himself to defendant, dated Oct. 20, 1879. It conveyed to defendant a strip of land four rods wide for its track, the consideration being as follows: “ in consideration of the benefits and advantages which will result to me from the location of the Somerset & Cambria Railroad Company, and in consideration of the sum of one dollar to me in hand paid by the Somerset & Cambria Railroad Company.” The deed contained no reference to any other payment to be made for the land nor any reference to fencing or damages.

The plaintiff then testified to the promises for compensation for land, fencing and damages, as set out in his narr, and said that, by reason of these promises, he was induced to sign the above^ deed. In this he was corroborated by the testimony of his wife, his father-in-law, and his daughter, present at the signing, and.by two other witnesses.

The defendant’s agent, Judge Musselman, who negotiated the matter, testified that no such .promises were made; that he only promised damages in case any building should be taken, but none was so taken, and Mr. King testified for defendants that, when he came to locate the station, he heard there was some difficulty about the right of way over Lohr’s land, and that Specht told him, in Lohr’s presence, that he would release his company upon the station being located there. Lohr denied that he agreed to do so, or that he heard this conversation.

The court charged the jury, inter alia, as follows, by Baer, P. J.:

[“It seems utterly improbable that Judge Musselman should write a deed and proceed to have it signed, if, when signed, it was illegal and worthless. It would seem unreasonable and inconsistent that the plaintiff, Lohr, who alleges he was signing a worthless and illegal paper, should, at the same time, refuse to sign such pa*509per until he was promised that this worthless paper should not cut him out of his right to have damages. It is quite probable, from the lapse of time that has occurred here, that there was some misapprehension as to how this matter was. You will take into consideration that here you have Judge Musselman on the one hand alleging that this paper reads precisely as the contract was, except that he said that if the railroad should run on the west side of the Stonycreek and through Lohr’s buildings, his damages should be paid by the company. If this is so, if the contract was as Judge Musselman swears it was, the road not having been located through the buildings, then the plaintiff- cannot recover in this case.] [6]

[“ But the plaintiff alleges, on the other hand, as I have said, that a promise was made that he should be paid. You will look at the testimony of Lohr, the plaintiff, taking into consideration the fact that, under the Act of Assembly, he is a competent witness, and yet he is a party in interest and you will look at that also. His wife, who is a close relation, comes on the stand, as does her daughter, who, at that time, was younger by five or six years than now. David Specht, his father-in-law, also testifies to the same state of facts. Thus you have Lohr, the plaintiff, and his relations, testifying against Judge Musselman as to what this contract was. You will take all this into consideration. It has been argued that the fact that Lohr, his wife, his daughter, and his father-in-law all come upon the stand and tell precisely the same story from beginning to end, is a circumstance indicating that their story was concocted. You will look at that; it is a-question for you in determining what is the truth in this case.] [7] If Lohr, at that interview, refused to sign this deed until he was promised that he should be paid, as he testifies, he is entitled to be paid notwithstanding this paper, because the refusal of the railroad company to fulfill its promise would not be such a fraud as would set aside this grant and prevent parol testimony from being considered, unless clear, precise and indubitable. In such case, the plaintiff would be entitled to recover the fair value of the property taken, because this is not a suit like that provided for by the Act of 1849, which provides that, where a railroad company wishes to enter upon' land of another, if the parties cannot agree, the company shall file a bond, and then it has the right to enter and the owner of the land must come into court and ask to have viewers appointed. The viewers go on and assess the damages, and, when they do so, they take into consideration the advantages, as well as the disadvantages, resulting to the party whose land is taken, and estimate the damages in that way. [This is not a case of that kind; here the railroad company entered by the consent of the owner and therefore he did not come into court to file a petition to have viewers appointed; but he seeks to recover, under the testimony and under this narr, compensation for the land taken, the price for making all the fences that became necessary by the taking of this land, and the actual damages done to any land not *510taken. That is what is claimed in this narr, and that is what is testified to; so that, in this case, the question of advantages or disadvantages does not arise, as we have ruled; and you are to look at the actual value.] [11] . . . .

[“ The plaintiff alleges that he only signed after being promised that he would be paid for the land taken, for damages to his other land, and sixty cents a rod for the fencing made necessary. That is his claim, and to this alleged promise there are but four witnesses.] [8 ] . . . . The defendant company denies that it made such a promise, as alleged by the four witnesses on the part of the plaintiff, except that, if the road would run through the buildings of the plaintiff, the company would pay the damages; and the defendant alleges that, beyond that, the general benefits named in the deed and the one dollar consideration, were all that Lohr was to have. [To sustain this allegation, the company comes here and produces this deed, which stands till the plaintiff satisfies you by clear proof that there was such a parol agreement at the time, that he was to be paid independently of this deed. Next, in corroboration of the deed, the defendant puts Judge Musselman on the stand. He is a disinterested witness, so far as anything appears here, except that he rides on a pass, as also did many other witnesses when coming here. We say to you that that can only be considered as to whether or noL it affects his credibility. That same rule might apply to a farmer who had a law-suit, and who would put half a dozen of his neighbors, who were his witnesses, into his wagon and bring them here free of charge, instead of allowing each one to come on his own horse, or as he saw fit. That would be the same as for the railroad company to bring its witnesses here on free passes.] [9] .... [You have also the testimony of Mr. King as to what Specht said to him at or near the station when there was a controversy about the location of the station-house, as to whether it should be on this land or some place else. Mr. King, the General Superintendent of the road, says that Specht said to him that, in consideration of putting the station-house where it now is, Mr. Lohr agreed to waive all claim he had for these damages.] [10] Lohr denies that he agreed to do so or authorized Specht to say so. Specht himself says that Lohr was not there and did not say so. Specht’s saying this to King cannot affect this case, unless Lohr was in hearing distance at the time and made no objection. Lohr says he was not there. You will look at all this testimony and see how this matter is.

“ When you reach the jury-room, you will decide whether or not there is to be a verdict for the plaintiff. If you decide that there is to be, you will then ascertain how many rods of fence are to be paid for at sixty cents a rod. [Next, you will consider whether there was an injury to this coal bank. The testimony is that there was not a particle of injury to the coal bank, and therefore that is out of the question. Next, was there any obstruction of the road leading to the coal bank ? We fail to see anything that shows that there was *511any obstruction at all. It was an inconvenience, no doubt; as he had to travel along this township road, crossing the railroad several times. That is a matter of inconvenience, but wc heard none of the witnesses testify that there was any damage by any obstruction of this road to his coal bank, or that the plaintiff was put to any trouble or expense to remove any obstruction in order to get to or from his coal bank. Mere inconvenience of access is not a matter to be considered here. If this were a proceeding under the Act of Assembly, in which all the advantages and disadvantages would be taken into consideration, then the question of the location of this road, so far as it affected the coal bank; might come in, and, so far as it affected any of his other property, it would come in; but this is an action of assumpsit, substantially, to recover, not for all the injuries done there, direct and consequential, but to recover pay for that which was promised at the time.] [12] . . . .

“ You have heard all the evidence on both sides, and you will consider it and determine what is the fair value of this land, in case you find that the plaintiff should recover.”

The plaintiff requested the court to charge, inter alia, as follows:

“ 2. C. C. Musselman having testified that, at the time Pearson Lohr signed the paper, dated October 29, 1879, there was a promise made by him in regard to damages if any building of the plaintiff should be injured, therefore the kind and degree of proof usually required to avoid or correct a written agreement are not required in this case; and the jury are to determine from the weight of the evidence whether there were such inducements or representations made by Musselman and testified to by the plaintiff and his witnesses. *Answer:*This, like civil cases generally, is to be determined by the weight of the evidence. It is not an issue to reform a written agreement, notwithstanding the jury must be satisfied that the witnesses must be credible, that the facts testified to are distinctly remembered, and that their statements are true', and, in determining the whole case, the jury will take into consideration what, if any, effect close relationship as a party has upon credibility.” [1]

“ 4. The evidence relating to the location of depot is not sufficient to bar the plaintiff’s claim for damages, and is tobe wholly ignored by the jury in determining their verdict. *Anszver:*This we refuse. You must decide what the testimony is in regard to the depot from what the witnesses said.” [2]

Defendant requested the court to charge, inter alia, as follows :

“ 1. The plaintiff having shown that, on Oct. 29,1879, he executed a release to the defendant for the right of way over his land for the consideration of one dollar, and in consideration of the benefits and advantages which would result to him from the location of the Somerset & Cambria Railroad, the contract is binding unless procured through fraud, accident or mistake.

*“Answer:*So far we affirm this point; but it continues as follows :

*512“And as the plaintiff produced no evidence to establish either fraud, accident or mistake, the verdict must be for the defendant.

*“Answer:*This we refuse. We do not charge that the verdict must be for the defendant. You will determine that under all the evidence.” [3]

“ 3d. The proof of an alleged contemporaneous parol contract set up in contradiction of the written contract, must be clear, precise, satisfactory and indubitable, such as would require a chancellor to reform the instrument; and, as the proof in this case is not of such a character as is required by law to reform the written contract for the right of way over the plaintiff’s land, the verdict must be for the defendant. *Answer:*That, we say, is, as a rule, the law; but because of the last clause, we must refuse the point.” [4]

“ 5 th. If the plaintiff, at the time of the location of the station on his land, agreed, in consideration thereof, to relinquish any claim he had by reason of the occupancy of his land by the defendant company, then he cannot recover in this case; and the verdict must be for the defendant. *Answer:*This point we affirm.”

Verdict and judgment for defendant. The plaintiff then took this writ.

*The assignments of error*specified, 1-5, the answers to the points as above, quoting the points and answers; 6-12, the portions of the charge included in brackets, quoting them; 13 and 14, in giving undue weight to the testimony of defendant’s witnesses, and in calling attention to testimony of defendant’s witnesses, and omitting to call attention to the testimony of plaintiff’s witnesses; and, 15, the action of the court in amending the record “atthe cost of the plaintiff,” quoting the bill of exceptions.

*A. IT. Coffroth,*of *Coffroth & Ruppel,*for plaintiff in error.

This was an action to recover damage for breach of contract, and not an attempt to reform a deed by parol: West Chester & Phila. R. R. *v.*Broomall, 2 Cent. 520. The court therefore erred in the 1st, 2nd and 3d assignments of error.

There was no evidence that Specht was Lohr’s agent, or that Lohr agreed to release his damages in order to secure the erection of a station-house, and it was error to withhold a distinct instruction to that effect: Tenbrooke *v.*Jahke, 77 Pa. 396.

It is trespass for a corporation to take property without first making compensation or securing the same: Harrisburg *v.*Crangle, 3 W. & S. 460; McClinton *v.*R. R., 66 Pa. 404; Dimmick *v.*Brodhead, 75 Pa. 464.

A common-law action can be maintained for injury to private property done by a corporation in the exercise of its right of eminent domain: Pa. R. R. *v.*Duncan, ill Pa. 352.

It is error to review only one side of the testimony: Parker *v.*Donaldson, 6 W. & S. 132; Coxe *v.*Deringer, 82 Pa. 236.

It was too late after defendant had filed a plea in bar for it to *513avail itself of a variance between the writ and declaration: Baum *v.*Tonkins, no Pa. 575; Overseers *v.*Bunn, 12 S. & R. 294; 12 Johns. 438.

May 21, 1888.

Besides, it was not such a change in the form of action as is contemplated by § 1 of the Act of May 10, 1871, as would compel the party applying to pay all costs up to the time of amendment.

*W. H. Koontz,*for defendant in error,

not heard. — There were but three questions in the case : 1st, Was there such a promise made, as alleged by the plaintiff? 2nd, If such promise was made, was the matter settled by the location of the station-house on the plaintiff’s land? 3d, If not settled, what damages were sustained by the plaintiff? There was a conflict of testimony on all these points, and, after full argument by counsel and a fair and impartial charge by the court, the jury returned a verdict for the defendant.

As to the last assignment of error: The narr was in case, and was so worded as to be either in tort or assumpsit. The plea was not guilty. The offer was to prove a tort first and then a promise. As the gist of the action of trespass is the injury to the possession, and as the narr did not allege a wrongful entry, the evidence was properly excluded. Plaintiff took no exception to this ruling, but moved to amend, which can be done only upon payment of costs under the Act of May 10, 1871.

Paxson, J.,

We find no error in this record. The rulings of the court were quite as favorable to the plaintiff as he was entitled to, and the jury found the facts against him. His main difficulty was that he had no case.

Judgment affirmed. w. M. s., jr.