Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-04-09
LEGAL.
Decision OF the Supreme COurt of Ten
nessee. az Nashville, December Term
1867.

1867.
Reported for the Union and Dispatch, by S. J.
Henderson. Attorney at Law.
EvIDENcE-"Parol contempOraneous evidence is
iDadmissible TO contradict or vary the terms
Of valid written instrument" Held that this
rule Il not infringed by th admission Of par0l
proof 20 show other considerations than those
expressed nor Is the rule infrinRed by the adj
missien Of oral evidence TO prove new
and distinct agreement upon new cOnsidera-
ton, whether Il be as a substitute for the old.
OF in addition 20 and beyond it."
VIM. Perry. Jr., %. The Central Southern Rail-
road Company.
Perry instituted this suit in the Circuit
Court Of Maury county, on the 10th day Of
April, 1861, against the Central Southern
Railroad Company, TO recover damages.
First. For the alleged breach Of an en-
gagement, by which the defendant agreed
that in consideration OF obtaining a right
of way for the company through the plain
tih7s land, whereby the right Of way of the
plaintiff 10 a certain public road, known as
the Morresville pike, was destroyed or dis
turbed, the defendant would pay the plain
tiff the sum Of eight hundred dollars, and
although the plaintiff has complied with
his part Of said agreement, in allowing the
defendant the right Of way through his
land. and 10 obstruct his right OF way TO
said public road, said defendant has failed
10 pay said sum of eight hundred dollars,
or any part thereof
The second count in the declaration
seeks TO recover $500 due upon stated
account and for money paid by plaintiff
for the defendant at his special instance
and request and by the third count it is
sought to recover $500 damages for the
breach Of a contract, whereby in considera-
ton that the defendant had in the con-
struction Of its road through the lands Of
the plaintiff made a large fill, in conse-
quence Of which the plaintiff was hindered
and prevented from having his own private
right of way from his house TO said public
road and from passing along the same I'M
obstrucied The defendant agreed TO
pay the plaintiff $500 as damages sus-
tanned by him in surrendering his
said private right Of way, and the plain
tiff AYERS that although he gave and
granted 20 the defendant a right of way
through his land, also permitted defend
ant 10 throw up a fill on said road 80 as 10
obslruct and destroy his own private right
of way TO the public road, and did all
other things incumbent on him 10 do by
the terms of said agreement, said defend
ant has wholly failed 10 comply with its
part of said agreement. 90 this declara-
ton the defendant filed several pleas in
short, to-wit First, non-assumpsit second,
not guilty third, accord and satisfaction
fourth, the statute Of limitations.
Upon the trial of the cause the plaintiff
offered 10 prove, by Galway and other
witnesses First, that the defendant,
in consideration that the plaintiff
would give il the 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 plaintiff under the road and
through the street in font Of his house,
and when this roadway led from his mouse
10 said turnpike, which the defendant failed
10 do, Notwithstanding plaintiff had grant
ed to defendant said right Of way through
his lands, and that afterwards, in consider
alton that plaintiff would release defendant
from said agreement, the performance of
which defendant alleged, would cost $500,
the defendant undertook and agreed to
build plaintiff a good macadamized turn
pike road from his residence 10 said turn
pike crossing; said railroad at point
where the fill and the cut on
said railroad came together on the
plaintiffs land, which the defendant
had failed to do, notwithstanding plaintiff
agreed to release defendant from said frat
agreement, and that afterwards plaintiff
and defendant accounted together and in
consideration that plaintiff would release
defendant from the said agreement the de-
fendaut agreed 60 pay plaintiff the sum of
$500, which the defendant has failed to do,
Notwithstanding the plaintiff agreed to
accept the same.
The plaintiff also offered to prove by said
Galloway he was a director in said compa
ny, and a special agent then for the pur-
pose Of preserving the right Of way for
said company from persons owning land
that at the time the right way was granted
TO the defendent by the plaintiff, and
afterwards the proposition above stated
were made by the defendant and accepted
bv the plaintiff in the order in which they
are here stated. To all Of which the de-
PENDANT objected, and in support Of the
objection offered and read the following
deed, 10 wit:
81, William Perry, Jr., for and in con-
alteration OF one dollar to me in hand
paid, hereby sell and convey TO the Central
Southern Railroad Company the right of
way over, through and across any land Of
mine situated in Maury county, Tennessee,
civil district No z ; and ] do hereby re
lease said company from any and all
damages which may accrue 10 me, my
heirs OF assigns by reason Of the location or
construction Of said railroad over, upon
and across my said land.
Witness NV hand and seal this 30th
September, 1856.
WM. PERRY, JR. fsEAL.l
Test J. BAIRD.
r. B. MAYS
This deed was duly acknowledged by the
erantor before the Clerk Of the County
Court for Maury county, on the l7th OF
August, 1859, and afterwards registered in
the Office for said county, and thereupon
the court sustained the objection Of the de-
PENDANT 20 the testimony offered by the
the ground stated 10 the bill
of executions said proof would contra
dict and vary the consideration set forth
and expressed" in said deed, whereupon
the plaiptifi announced he had no further
nroof and thereupon the court instructed
ibe iurv 70 end Cor the plaintiff which
tkey did. To all Of which the plaintitiex-
cepted and rendered his ball Of exeep-
tons.
A judgment for the defendant was rem
dered. The plaintiff moved for new
rial. which being refused, he has appealed
In error 20 this court.
The Judgment Of the Circnit Court Is en-
.. oeo,s. The testimony offered by the |
nIa;ntifT docs not contradict the deed, or
rsrv he contract between the parties as II
! sia.ed ia the deed. The deed contains
'wo distinct stipulations- BY the hrst,
psyrv sells and CONVEYS % the railroad |
.on,nanv "a. right Of way through his |
.nds iu The 9.h civil district, Maury COM
". BY the second he releases SAID eoinpa-
Nv from all damages which he may sustain
~ reason Of the location or construction o.
aid road upon said lands.