Windle v. Crescent Pipe Line Co. ( 1898 )

Opinion by

Mr. Justice Mitchell,

The plaintiff has clearly mistaken his remedy. In his statement he declared as the owner of a farm for a trespass by an entry “ without authority of law or of the plaintiff,” the digging Of a ditch,'and putting down of a pipe therein, the trampling of his grass, cutting of his trees, and damage by the leakage of oil from the pipe. His evidence in chief .was all upon the same lines. The defendant then put in evidence a release under seal, by which plaintiff authorized the entry and granted the defendant a right of way for its pipe, the defendant stipulating to pay for all actual injuries to lands, timber, crops, fences, buildings and improvements, and for all damages from bursting or leaking of the pipe, etc.

To meet this turn in his case the plaintiff then offered to prove that the said release was obtained from him by fraud. This he would have been entitled to do if his testimony had reached the required standard. But it clearly did not. It was an offer to show that plaintiff supposed from the representations made to him that he would get the same damages as his neighbors, and that they would include “all damages,” although the words used in the writing were “to pay for all actual injuries.” Without going over the long offer in detail, it is sufficient to say that there was no allegation that anything had been left out of the paper by fraud, accident or mistake, or that there was any parol promise or agreement made at the time, without which it would not have been signed by plaintiff. Nor were there any damages averred in the statement that were not provided for in the release. The offer therefore fell short, and the judge was light in rejecting it. The plaintiff’s remedy appearing clearly to be on bis contract, the judge was also right in bolding that he could not recover in the present action. The extent of liis rights under the contract it would be premature to discuss.

Judgment affirmed.