— Stephens ,T.
By the Court.
delivering the opinion.
[1.] Mr. Hodnett by his bill, makes two cases. The first is, that his deed of the right of way, was procured by fraud ; and his specification of fraud is that the company induced him to make the deed by certain parol promises, which, from the beginning, they fraudulently intended to break and which they have never performed. Is this a case entitling him to relief? Does it not fall under that wise and well-settled rule which excludes parol evidence intended to vary a written contract, by either taking from it or adding to it ? Does not this rule require that all promises on which the parties rely should be put into the writing, when there is a writing, professing to set forth the contract on both sides ? Where there is no reliance or confidence, there can be no fraud. The question I ask is, whether all promises on which the parties [465]*465rely must not be in the writing. I do not mean representations. These last relate to the truth of existing or passed, facts, and not to engagements in the future; but promises, if they are to have any efficacy, must have it in the future; they are an undertaking, a contract and the rule requires all the contract to be in the writing. What of the contract is not there, dont exist; it is waived, discarded, merged. This view T suggest as a difficulty in my own mind, and not as a decision of the Court nor as a settled opinion of my own. So far the bill. How does this branch of the case stand on the proof? The only evidence that these promises were false and fraudulent in their inception, is the fact, that the company being able to perform them, have not done so. It was said in the argument, that the jury must be left to infer from the circumstances of the case, whether or not these promises were from the first, intended to be performed, or only made to deceive and defraud. But are there any “ circumstances” about the case, except the power to perform coupled with a failure ? Is this enough to authorize the conclusion ? To say so, seems to me to be a mere evasion of the rule to which I have just referred. A man receives promises, acts on them, • relies on them, and then puts in writing the contract on both sides, but leaves these out; intentionally leaves them out. The rule debars him from enforcing them, but he gets the full benefit of them notwithstanding, for he has only to show that they were made and would have been, but in point of fact, have not been performed. Does this make a case foirelief? This view also, I propound as a difficulty, and not as a settled opinion. It is a point on which the Court desired to see authority, but none was produced. But if relief, what relief does this case authorize ? Surely not damages for a violation of the contract. The case now under consideration is that the contract is truly contained in the writing, but was fraudulently procured by false dealing at the time. The effect of this, would be to vitiate, to avoid the contract, and to give damages for the injury done by its performance, and [466]*466not by its violation. In this view, there is no violation of the contract. When a man has been inveigled into a contract by fraud, he may rescind it or adhere to it as he pleases. If he adheres to it, he takes it as it is and not as he might have made it, with different information., If he rescinds it, he is entitled to compensation for all the hurt he has received from the contract; not from its violation. And it might happen, that he would be entitled to no damages at all, (except nominal,) for it might well happen that the contract, though procured by fraud, does him more good than harm. Mr. Hodnett’s damages, in this view of his case, would be something or nothing, according as the railroad has done his plantation more harm or more good; considering on the one side the inconvenience to him in carrying loads from one part of his plantation to another, the ponding of his land, and the deprivation of that part of his land covered by the right of way; and on the other side, the increased facilities of reaching a market, and of personal travel, the draining and reclaiming some of his swamp lands, and the general enhancement of the value and price of lands, his included. In other words, would his plantation bring more money as it is, or with the railroad, destroyed? The rule of damages laid down by the presiding Judge, is not conformable to the proper measure in this view of the case. But Mr. Hodnett presents another case. He says that the contract is not all in the deed, but that the parol promises of the company form a part of it and he asks damages for a violation of that part of the contract. To me, this seems a clear and palpable violation of the rule excluding parol evidence to vary a written contract. 1 am aware that the rule has been so construed, or to speak the plain truth, so relaxed, as to allow parol proof of an additional or different consideration for a deed, when that expressed-in the deed itself, is a mere pecuniary one. But the relaxation has gone no further, so far as I am aware, and I trust it never will. Here the deed is an indenture, professing to set forth the contract on both sides. Hodnett [467]*467conveying the right of way, and the company (not paying him mere money as a consideration lent) engaging to ran their road through his land. Surely he was bound by the rule I have mentioned, to put into the writing all the stipulations on which he relied as a part of the contract. If the rule dont require this, it is no rule, and the Courts ought to say frankly that they do not recognize it. This case seems to me, to be put out of all doubt by the condition in the deed. Out of all the promises which he says the company made, he chose to set down in the writing, but the one that they should run their road through his land, and he put it as a condition in the deed, that if they .should fail in that promise, the contract should be void, but if they should perform that one promise, the contract should be good. They have performed it. He admits too, that the deed was written exactly as he intended it to be, and as it was agreed it should be. He does not pretend that it ought to be reformed, so as to conform to what the parties intended it should be 3 but he seeks to superadd to it other promises, other conditions lying in parol only, and never meant to be in writing. In presenting this view, I do not speak for my colleagues, for I understood they were not satisfied on it. But we were all agreed that the rule of damages as laid down by the presiding Judge, whether applied to this view of the case, or to the first one, is erroneous. Indeed, the presiding Judge seems to have mixed the two views together in fixing a measure of damages. He told the jury they must find all the damages which Hodnett had sustained by his performance of the contract, and also, all he had sustained by the company’s violation of it. Now I think it is clear, that if he is entitled to damages at all, he must either repudiate the contract and ask damages for having been inveigled into it; not for its violation; or else, adhering to the contract, he must ask damages for the company’s violation of it, and not for his own performance of it. If he adheres to the contract he is hound
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— Stephens ,T.
By the Court.
delivering the opinion.
[1.] Mr. Hodnett by his bill, makes two cases. The first is, that his deed of the right of way, was procured by fraud ; and his specification of fraud is that the company induced him to make the deed by certain parol promises, which, from the beginning, they fraudulently intended to break and which they have never performed. Is this a case entitling him to relief? Does it not fall under that wise and well-settled rule which excludes parol evidence intended to vary a written contract, by either taking from it or adding to it ? Does not this rule require that all promises on which the parties rely should be put into the writing, when there is a writing, professing to set forth the contract on both sides ? Where there is no reliance or confidence, there can be no fraud. The question I ask is, whether all promises on which the parties [465]*465rely must not be in the writing. I do not mean representations. These last relate to the truth of existing or passed, facts, and not to engagements in the future; but promises, if they are to have any efficacy, must have it in the future; they are an undertaking, a contract and the rule requires all the contract to be in the writing. What of the contract is not there, dont exist; it is waived, discarded, merged. This view T suggest as a difficulty in my own mind, and not as a decision of the Court nor as a settled opinion of my own. So far the bill. How does this branch of the case stand on the proof? The only evidence that these promises were false and fraudulent in their inception, is the fact, that the company being able to perform them, have not done so. It was said in the argument, that the jury must be left to infer from the circumstances of the case, whether or not these promises were from the first, intended to be performed, or only made to deceive and defraud. But are there any “ circumstances” about the case, except the power to perform coupled with a failure ? Is this enough to authorize the conclusion ? To say so, seems to me to be a mere evasion of the rule to which I have just referred. A man receives promises, acts on them, • relies on them, and then puts in writing the contract on both sides, but leaves these out; intentionally leaves them out. The rule debars him from enforcing them, but he gets the full benefit of them notwithstanding, for he has only to show that they were made and would have been, but in point of fact, have not been performed. Does this make a case foirelief? This view also, I propound as a difficulty, and not as a settled opinion. It is a point on which the Court desired to see authority, but none was produced. But if relief, what relief does this case authorize ? Surely not damages for a violation of the contract. The case now under consideration is that the contract is truly contained in the writing, but was fraudulently procured by false dealing at the time. The effect of this, would be to vitiate, to avoid the contract, and to give damages for the injury done by its performance, and [466]*466not by its violation. In this view, there is no violation of the contract. When a man has been inveigled into a contract by fraud, he may rescind it or adhere to it as he pleases. If he adheres to it, he takes it as it is and not as he might have made it, with different information., If he rescinds it, he is entitled to compensation for all the hurt he has received from the contract; not from its violation. And it might happen, that he would be entitled to no damages at all, (except nominal,) for it might well happen that the contract, though procured by fraud, does him more good than harm. Mr. Hodnett’s damages, in this view of his case, would be something or nothing, according as the railroad has done his plantation more harm or more good; considering on the one side the inconvenience to him in carrying loads from one part of his plantation to another, the ponding of his land, and the deprivation of that part of his land covered by the right of way; and on the other side, the increased facilities of reaching a market, and of personal travel, the draining and reclaiming some of his swamp lands, and the general enhancement of the value and price of lands, his included. In other words, would his plantation bring more money as it is, or with the railroad, destroyed? The rule of damages laid down by the presiding Judge, is not conformable to the proper measure in this view of the case. But Mr. Hodnett presents another case. He says that the contract is not all in the deed, but that the parol promises of the company form a part of it and he asks damages for a violation of that part of the contract. To me, this seems a clear and palpable violation of the rule excluding parol evidence to vary a written contract. 1 am aware that the rule has been so construed, or to speak the plain truth, so relaxed, as to allow parol proof of an additional or different consideration for a deed, when that expressed-in the deed itself, is a mere pecuniary one. But the relaxation has gone no further, so far as I am aware, and I trust it never will. Here the deed is an indenture, professing to set forth the contract on both sides. Hodnett [467]*467conveying the right of way, and the company (not paying him mere money as a consideration lent) engaging to ran their road through his land. Surely he was bound by the rule I have mentioned, to put into the writing all the stipulations on which he relied as a part of the contract. If the rule dont require this, it is no rule, and the Courts ought to say frankly that they do not recognize it. This case seems to me, to be put out of all doubt by the condition in the deed. Out of all the promises which he says the company made, he chose to set down in the writing, but the one that they should run their road through his land, and he put it as a condition in the deed, that if they .should fail in that promise, the contract should be void, but if they should perform that one promise, the contract should be good. They have performed it. He admits too, that the deed was written exactly as he intended it to be, and as it was agreed it should be. He does not pretend that it ought to be reformed, so as to conform to what the parties intended it should be 3 but he seeks to superadd to it other promises, other conditions lying in parol only, and never meant to be in writing. In presenting this view, I do not speak for my colleagues, for I understood they were not satisfied on it. But we were all agreed that the rule of damages as laid down by the presiding Judge, whether applied to this view of the case, or to the first one, is erroneous. Indeed, the presiding Judge seems to have mixed the two views together in fixing a measure of damages. He told the jury they must find all the damages which Hodnett had sustained by his performance of the contract, and also, all he had sustained by the company’s violation of it. Now I think it is clear, that if he is entitled to damages at all, he must either repudiate the contract and ask damages for having been inveigled into it; not for its violation; or else, adhering to the contract, he must ask damages for the company’s violation of it, and not for his own performance of it. If he adheres to the contract he is hound to perform it, and certainly is entitled to no damages for having done [468]*468so. His remedy in this ease is, to make them perform as he has done, or pay him an equivalent for their failure. And in this view he is not entitled to any compensation for his right of way. That passed by the contract, and if the contract stands and is enforced, they must pay for it, not what it was worth, but what they agreed to pay, or having failed in this, they must pay an equivalent, not for the right of way, but for what they agreed to do, but have failed to do. We think too, in this view of the case, (if he is entitled to relief at all) a Court of Equity may look to the future, and award such damages as will enable him to do for himself, those things which the company agreed, but have neglected to do for him; that is, to give him an equivalent for the future performance, as well as the past failure.
[2.] What is such an equivalent ? We think it is the cost which a discreet man would, in Mr, Hodnett’s circumsta?ices and situation, have incurred, in remedying the inconveniences which the company engaged to obviate in the past, together with such a sum as will obviate them in the future. For myself, I will add that there is a clear limit beyond which it seems to me the damages can not go. What is Hodnett’s whole place worth, with no obstruction to communication between all its parts ? Then, with the two hundred acres beyond the railroad cut off, what would the remaining part be worth? This difference, lessened by what the two hundred acres in a separate state would bring, forms a limit beyond which the damages can not go, for if the cost of keeping up communication between the different parts would be more than this, a discreet man would have abandoned the attempt to keep up such communication, and have sold the two hundred acres. It may be said that would leave him too little land for his force, or would leave him without timber, &c.; but all these are elements in estimating what the remainingland would be worth with the two hundred acres cut off. I do not say that the damages ought to come up to this limit, for it may well be, that they do not [469]*469When he undertook to remedy the inconvenience, he is entitled to charge, not what his remedy actually cost him, for his remedy may' have been a very unwise and absurd one, but what would have been the cost of the best remedy which his circumstances and situation allowed.
[3.] The admissibility of complainant’s evidence, is the only other point needful to be mentioned. Of course, none of the parol evidence touching the sayings of the company’s agents was admissible, if the doubts and difficulties which I have suggested against Mr. Hodnett’s whole case, are well founded. But assuming even that they are without foundation, we all think there was error in admitting this testimony. The rule we think is clear, that only those sayings of an agent are admissible against his principal, which are spoken while he is doing his principal’s work, and are spoken concerning the very work he is doing. Bumfervet opus. The principle on which they are admitted at all, is that they constitute a part of the res gestee ; a part and parcel of the very thing the agent is doing when he utters them. The only agent whose sayings in this case are admissible, is McLendon, who took the deed. That was the main fact, and whatever was done or said at that time, in relation to that matter, stands on different grounds from the sayings of others. And we think too, that as McLendon and Hodnett were both in the public meeting and went right out of it, and executed the deed, McLendon may be considered as having adopted the promises which he had heard, and which he knew Hod-nett had heard and made for the railroad company. Hence, we think the sayings in that meeting were admissible, if indeed any parol evidence, was admissible. But we think all the other parol evidence of agents’ sayings was clearly inadmissible under any view.
[4.] I have not considered all the assignments of error seriatim, but I have adverted to principles which cover them all. Counsel are now informed at what points the pressure lies, and we trust that they will another time produce to us [470]*470authority on the points where I have indicated it to be needed, should this case ever come before this Court again.
Judgment reversed.