Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-10-07
NASHVILLE, TENNESSEE, DECEMBER TERN, 1876
THOMAS coLDwELL ATTORNEY GENERAL AND REpoRrEI
WM PERRY, Jr, os. THE CENTRAL SOUTHERN
RAILROAD COMPANY.


WM PERRY, Jr., os. THE CENTRAL SOUTHERN
RAILROAD COMPANY.
Perry instituted this suit in the Circuit Court of Maury
county the 10Th of April 1861, against the Central
Southoll Railroad Cympany, to recover damages.
First, for the alleged breach of an agreement, by
which the defendants agreed that in consideration Of OBJ
tanning a right Of way for the Company through the
plaintiffs land whereby the right Of way of the plaintiff
to certain public road, known the MOoresvilo pike
was destroyed or disturbed the defendant would pay the
plaintiff the Of eight hundred dollars and although
the plaintiff has complied with his part of said agree
ment in allowing the defendant the right of way through
his land and to obsruct his right Of way to said public
road said defendant has failed 70 pay said sum Of $780,
any mart thereof The second count in the declaration
seeks to recover $780, due upen stated account and
for money paid by plaintiff for the defendant at its spe
eia instance and request aud by the third count it is
sought TO recover 81 500 damages for the breach of
contract whereby, in consideration that the defendant
had the construction of its road through the land OF
the plaintiff made largo f in consequence of which
the plaintiff was hndered and prevented from having his
own private right Of way from his house to said public
road, and from passing along the same unobstrueted
The defendant agreed TO pay the palnn SSVO as DANA
res sustained by him in urrenderng mis- said private
right Of way through his land and also permitted defen
dant TO throw up ill said road as to ebstruct and
destroy his own private right Of way 70 he pu9hc road
and did all other things incumbent him to do by the
terms Of said agreement Said defendant has wholly
failed to comply with its pals Of said agreement
To this declaration the defendant filed several pleas,
TIA l.
Accord and satisfaction 4 The statute of limitations
Upon tho trial of the cause the plaintiff offered to
prove by Galloway and other witnesses; l. That the
defendant in consideration that the plaintiff would give
it tho right Of way through his entire tract Of land and
in front Of his residence, undertook and agreed with
plaintiff to build roadway for the paintih under the
road and through the field in front OF his house. and
where his roadway led from bis house to SAID tdrnpke
which the defendant failed to do, notwithstanding the
plaintiff had granted to defendant said Light of way
through his lands And that all 'rwaFds IN Consldera-
tion that the plaintiff would release the defendant from
said agreement the performance Of which, defendant al
legged would 500, the defendant undertook and
agreed TO build plaintiff good macadamized turnpike
road from his residence to said turnpike crossing said
railroad at 20 it where tho fills and the cut said
railroad come together the plaintiffs land, which
tho defendant had failed to do, notwithstanding tho plain
m agreed to release defendant from said first agreement
and that afterwards plaintiff and dc 5ndant accounted
together nd 10 ,onsiderat IN that plaintiff would re-
lease defendant om the said agr inent the defendant
agreed to pay plaintiff the Of sSOO, which the deien-
dant has failed to do notw 3s idng the plaintiff agreed
The pianti also offered . prove by said Galloway, be
was a director n said conpal and spec Al agent
thereof for the pu pose Of pro ng the rght Of way
for sad company rom persons e"h la1' anu enaS ~
the time the hl Of way gre 1ted TO the defendant
by the entif and afterwards the propositions above
stated were made by the defent IT and accepted by
the plaintiff in the order in which they arc here stated
To al of which the defendant objected, and IN support
of the objection offered and read the following decd
to wit
al WIN. Perry Jr, for and in consideration of oaC
dollar to me in hand paid, do her,Sy sen ana convey
of way over and across any land Of mine situated IL
Maury county, Tennessee, civil district No. anu az
hereby release said company rom any and al Dana
ges which may 10 me my heirs OF assigns by
reason of The location or construction Of said Railroad
over upon aud across my said land-
"Witness my hand and seal, this SOth September
iS56. Wa. FERRY u.
"'Test: JoBE BAIRD"
ar. B. MATEs."
This decd was daly Acknowledged by the grantol
before the Clerk OF the County Court er MauTy coun
-, the 17th Of August 1857, aud aer"Ards regis
tered IN the Office Of the Register for that county
And thercupon tae court sustained me vlo''Sh a.
the defendant Tie test mony offered BY ihe piainhh
upon ths gsoy I'd sa Cd in the bill of EXCEPTIONS sa
proof would contradict and vary the consideration Sc
forth and expressed in said deed. Nhereupen ih'
plaintiff announced he had further proof aas
tereupon the oouEt instructed the juy to hnd ior h
plant which they did, 20 All which the piH uiil cX
copted and rendered his bin Of exesp' .oas Jadg
ment was rendered for the defendant The plaintiff
meved Tor a new t-ial which being rsfu cd, he ha
appealed in error TO this court
Ths iudgns mt Of the Circuit Couf. Is eTTeacous. tn
testimony offered by the painut does ne eohtleoio
ire d-ad or vary tic contract between the parties a.
II is stated "a the IL The DECD contains two als
t1e stipula ons BY the first Perry sells and convey
10 the Railroad company the ght Of way throagh m
lands in The ninth civ dist.ct ot Aapry county.
be the second he releases said eompsuy from az dam
ares which be may sus ain by r~asen Of the loceiol
or eonst. letlon of said road upon said lands.
Neither Of th propositions is deuied By ne plead
i, a. sonbt 10 h c5,trover.ed OF eatad by the te
timouy ored but 70 lhe contrary, the endsney Of IN
eesfs5 80 norv = in atfrmance Of the the conrac
touching boA prOpositioas.
But n &; INSISTED the plaintiff Is stopped from shoWnl
a different consideration from the expressed 10 Ia
ius Uuent by the recas therein, and that AZ no even
can parole evidence be admitted 70 show different con
sheraton for the msking Of the deed than the one ex
pressed.
We do not think either proposition be maintained
Tyery contract ordered must be supported By either
eo AZ raluale confederation and although the consid
sraisn must etisf, ill Il Reed rot be inserted in ih