
    George Lawton vs. The Fitchburg Railroad Company.
    A railroad corporation, in consideration of an amicable settlement of his damages by the owner of land taken for their road, agreed with him to fence the land taken; and, failing to do so within a reasonable time, were sued by him for breach of the agreement. It was held, that a subsequent erection of the fences by them, without the plaintiff's consent or approbation, did not affect his right to recover; and that the measure of his damages was the sum which it would fairly cost to erect the fences according to the agreement.
    This action, which was tried before Fletcher, J., was brought in this court, on the 10th of November, 1849, to recover damages of the defendants for not making and maintaining two fences, one on each side of their road in Waltham. The action was founded on a contract, dated November 11th, 184-3, which is in the following words : “ It is agreed by the
    Fitchburg Railroad Company, in consideration of an amicable settlement with George Lawton of Waltham, for land taken by them for the use of their road; that they will remove from the part of the land now being excavated all the soil for his use; that they will allow him to have the fences and the walls in his ice-house; that they will build and maintain two fences, the one on the south side of the railroad, like the one between him and Mr. Boyden, and one on the north side, like the one on the street that runs nearly parallel with the railroad, and build him a wooden bridge twelve feet wide, and a gate on each end of the bridge.”
    The defendants relied, as special matter of defence, on a performance. The defendants’ road was constructed through the plaintiff’s land in the winter and spring of 1844. The excavation through the plaintiff’s land was twelve or fourteen feet deep. No claim was made by him on account of the bridge, gates or removal of the soil mentioned in the contract, but only for the fences. No fence had been built by the defendants, on either side of the road, at the time this action was commenced, nor had any been built by the plaintiff.
    After the commencement of this action, to wit, in November and December, 1849, the defendants erected a fence on the south side of their road, and in the spring of 1850 they built one on the north side. These fences respectively were built like those referred to in the contract; and the defendants introduced evidence to show that these fences were erected with the consent and approbation of the plaintiff; but this was denied by the plaintiff, who insisted, and endeavored to show, that he in no way consented to, but opposed the erection of the fences.
    The defendants, admitting that they did not erect the fences referred to in the contract, until after this action was brought, contended, that having erected them since and before trial, whether with the consent and approbation of the plaintiff oi not, the plaintiff could only recover damages for the injury he had sustained by the defendants not erecting the fences within a reasonable time after the making of the contract, and could not recover the cost or value of the fences themselves.
    But upon this point the jury were instructed, that if the fences were erected by the defendants, after the institution of this suit, without the consent or approbation of the plaintiff, the erection of them would not take away the plaintiff’s right, as it existed at the time of the institution of the suit, to recover damages for the breach of contract by the defendants, and that the damages, which the plaintiff would be entitled to recover for the failure of the defendants to perform their contract, would be the amount which it would fairly cost to erect the fences according to the contract. A verdict was found for the plaintiff, and the defendants excepted to the said instructions.
    
      E. Buttrick, for the defendants.
    
      N. P. Banks, Jr., for the plaintiff.
   Metcalf, J.

As the agreement of the parties mentioned no time within which the fences were to be erected, the law required that they should be erected within a reasonable time; and the defendants do not deny that they failed to erect them within such time. There was, therefore, a breach of the agreement, when this action was commenced, and the plaintiff then had a right to recover damages for the breach. This right was not impaired nor affected by the subsequent erection of the fences by the defendants, without the plaintiff’s consent or approbation. 8 Wend. 567. And so the jury were instructed. They were further instructed, that the plaintiff was entitled to recover, as damages, the sum which it would fairly cost to erect the fences according to the agreement. The correctness of these instructions is questioned by the defendants’ counsel; because, as he suggests, they authorized the jury to give greater damages than the plaintiff may have suffered by the defendants’ omission to erect the fences. But there is no legal force in this suggestion. The injury to the plaintiff’s land, by reason of its remaining unfenced, is not the ground of the damages which he sought t« recover in this action. The defendants took his land for their railroad, and he amicably settled with them for such taking, upon their agreeing to put up fences on the sides of their road. The erection of the fences by them was a part of the consideration of the settlement for the land taken by them. The fair cost of the fences was the amount of that part of such consideration. The plaintiff chose to have fences between his land and the railroad; and if the defendants had not agreed to erect them, he would or might have demanded of them, as a condition of settlement, the sum necessary to enable him to erect and maintain them himself. Whether, therefore, there was any necessity for these fences, in order to protect his lands, or whether he has suffered any injury in his lands from the want of fences, is no part of the present inquiry. He offered no evidence on these points, at the trial. If he had proved such injury, another question might have been raised respecting the rule of damages. As the case stood, at the trial, the instructions given to the jury were, in our opinion, correct. Judgment on the verdict.  