
    The Western Rail Road Corporation vs. Abel Babcock.
    It is a good aefence to a bill in equity, praying for a specific performance of an agree ment to convey land, that the defendant was led into a mistake, without any gross laches of his own, by an uncertainty or obscurity in the descriptive part of the agreement, so that the agreement applied to a different subject from that which he understood at the time 5 or that the bargain was hard, unequal or oppressive, and would operate in a manner different from that which'was in the contemplation of the parties when it was executed: But in such case, the burden of proof is on the defendant to show such mistake on his part, or some misrepresentation on the part of the plaintiff.
    Where a party agrees, for a certain consideration, to permit a rail road corporation to construct a road over his land, on any one of two or more routes, at their option, and to convey the land to the corporation, for certain sums, according to the route that shall be taken, after the road shall be definitively located, he cannot defend against a bill for specific performance of his agreement, by showing-that he was induced to believe, either by his own notions or by the representations of third persons as to the preference of one route over another, that the corporation would select a route dif ferent from that which they finally adopted; nor by showing that the corporation or its agents made representations as to the probability that one route would be adopted in preference to another, or as to the relative advantages of each route.
    Where a party agrees under seal to permit a rail road corporation to construct a road over his land, and also agrees to convey his land to the corporation for a certain sum, after the road shall be definitively located, with a condition in the deed of conveyance that the deed shall be void when the road shall cease or be discontinued $ specific performance of such agreement may be decreed, after the road is constructed over the land, although the corporation did not expressly bind itself to take or to pay for the land: And where, in such case, the corporation takes the land, constructs a road over it, and is, for three or four years, in actual possession and use of all the privileges which the performance of the party’s agreement would give, and then files a bill against him for specific performance of his agreement, the bill will not be dismissed on the ground of unreasonable delay in filing it.
    Where an agreement by deed is made with a corporation, and is delivered to an agent of the corporation, who was duly authorized to negotiate it, it is delivered to the corporation. and his acceptance thereof is the acceptance of the corporation.
    In order to prevent a decree for specific performance of a contract, on the ground of inadequacy of consideration, the inadequacy must be so gross, and the proof of it so clear, as to lead to a reasonable conclusion of fraud or mistake.
    Where a party who has agreed to convey land, for a certain sum, to a rail road corporation, for the site of a road, refuses to perform his agreement, and obtains an assessment, according to law, of his damages caused by the laying out of the road over his land, the measure of the damages to which he is liable for breach of his agreement, is the excess of the sum assessed at law over the sum for which he agreed to con vey the land.
    Bill in equity, filed on the 4th of May 1842, praying for a decree for the specific performance of a contract.
    The bill alleged that the defendant executed and delivered to the plaintiffs an instrument in writing, in the following words: “ To all people to whom these presents shall come. Whereas the Western Rail Road Corporation have caused surveys to be made, to ascertain the best route for the road authorized by their act of incorporation, and other routes are about to be surveyed, some of which pass, or may pass, over or through lands owned by me, or in which I have an interest; therefore know ye, that I, Abel Babcock, of Chester, in the county of Hampden, in consideration of one dollar paid to me, and for the further consideration hereinafter expressed, that said rail road be located through or over lands situated in Chester, on the west side of the west branch of Westfield River, on or near the locating line lately run by John Child, engineer of said corporation, do hereby, for myself and my heirs, executors, administrators and assigns, grant, assign, transfer and convey to the said corporation, and for the use thereof, and their successors and assigns, full and free license and authority to locate, construct, repair, and forever maintain and use, the said rail road upon, through and over my said lands, in such places and courses as the said corporation may judge necessary and convenient, and to take therefor my said lands, to the extent authorized by their charter, and within the following described limits: On the west side of said river, on or near the said western line run by said Child. And I do, for myself, my heirs, executors, administrators and assigns, covenant and agree with the said corporation, that when said rail road is definitely located, I will, for the consideration hereinafter expressed, on demand, execute and deliver to said corporation, and their assigns, a deed of release and quitclaim of my said lands, taken as above specified, conditioned to be void, whenever said rail road shall cease and be discontinued; and will give such other assurances as may be necessary to carry into effect the object of these presents. Provided, however, that said corporation shall, wnen said rail road is definitely located, and my said lands taken therefor, pay me at the rate of fifty dollars an acre for all the land, which shall be taken for said road, now used as mowing, and fifty dollars an acre for the plough-land so taken as aforesaid, and eight dollars an acre for pasture-land so taken as aforesaid, and ten dollars an acre for wood-land so taker as aforesaid, and at the rate of one dollar for each rod in length through which said road shall run through my aforesaid lands for the purpose of fencing the same, where a fence shall be absolutely necessary ; provided, however, that where no fencing is necessary, then the same shall not be accounted any thing in the computation for fencing; and where only one side of said road shall require fencing, one half the amount per rod of the aforesaid sum for fencing shall be computed. Reserving, however, a right to cross said rail road, to get to my other lands, in some reasonable place, doing as little damage to said road as may be; or, in case the said corporation shall choose to pay me foui hundred and twenty dollars, as a gross amount of damages and fencing, I agree to release as aforesaid. In testimony whereof, I have hereunto set my hand and seal, this twentieth day of October in the year of our Lord one thousand eight hundred and thirty six. Abel Babcock (seal).”
    The bill then averred that the plaintiffs afterwards definitely located their road, according to the terms of their act of incorporation, and constructed the same over the defendant’s lands/ according to the terms specified in his contract above set forth, [describing the course, distance, &c. across said lands;] and that soon after said road had been definitely located, the plaintiffs demanded of the defendant that he should execute and deliver to them a deed of release and quitclaim of the lands, taken as above, conditioned as in the defendant’s said contract was stipulated, and were ready, and offered, to pay the defendant, as a consideration therefor, at the rate and in the manner provided in said contract; and that the plaintiffs, on the 27th of April 1842, tendered to the defendant $500, as and for the gross damages in said contract mentioned, and whatever interest might, under any circumstances, be due thereon, and demanded of him that he should execute and deliver to them a deed of release and quitclaim of said lands, taken by the plaintiffs, and at the same time tendered to him, for his signature and execution, the proper form of a deed; but that the defendant, at the several times above mentioned, refused to execute and deliver any deed of quitclaim of said lands, and had, at all times afterwards, so refused, although the plaintiffs had ever been'., and still were, ready to pay to him the sum due to him by virtue of said contract.
    The defendant, in his answer, admitted that he executed and delivered the contract set forth in the bill; but he averred that the same was not read by him, at the time of its execution, and that it was obtained from him either by fraud and misrepresentation, or mistake; that the said Child, mentioned in said contract as the plaintiffs’ engineer, run and superintended the running of the lines across the defendant’s lands; that one of said lines ran on the north side of said river, and near to the defendant’s house; that another of said lines ran on the south side of said river, and crossed it near the head of an island therein, which belonged to the defendant, and was near to his saw mill; that said last mentioned line was run on the defendant’s land about 160 rods; that at the time of the execution of said contract, the defendant was given to understand, and did understand, from the representations of Richard D. Morris, the agent of the plaintiffs, and who made the contract in their behalf, that the line last aforesaid had been adopted by the plaintiffs, and for which he wished to procure a release; and that as an inducement to the defendant to execute said contract, said Morris then and there represented that the plaintiffs would have to erect a bridge across said river, and that the defendant might use the same, in passing and repassing said river to and from his adjacent lands ; and that it was in consequence of this inducement, and of the advantages so held out to him, and of these representations, that he executed the said contract.
    The defendant further averred, that when said contract was executed, he was, and ever since has been, seized and possessed of two lots of land in Chester, lying upon a mountain, containing about 2s 10 acres, covered with valuable timber, which can be obtained for profitable use only by running it down the mountain to a certain road of the defendant, which he con structed, at great expense, for the purpose of procuring said tim ber, and along which to draw it to his saw mill, for use; that his saw mill is adjacent to said lots, “ and was valuable for the purpose of manufacturing timber: ” That the plaintiffs located, c.on-structed and used their rail road, in the courses, &c. mentioned in their bill; but that such location and construction were made over and above the aforesaid road of the defendant, and along the northerly parts of said lots, in such a manner as to prevent him from getting down his timber from said lots, or getting it to his saw mill, without very great and unwarrantable expense! That a part of said location and construction was made within the bed of said river, so as to obstruct the water, and endanger and render useless the defendant’s saw mill: That the damage, sustained by the defendant, in consequence of said location and construction, exceeds $ 2500; and that, when said contract was executed, he had no knowledge that said Child had run any such locating line as that where said rail road is constructed, or any line near to the same, and that he now believes that no such line had then been run, or that any thing was said to him by said Morris, at the time of the execution of said contract, as to such line; that he did not understand the line, mentioned in said contract, to be the one now occupied by the plaintiffs ; and that, if he had so understood it, he should not have executed said contract.
    The defendant admitted that the plaintiffs made a tender to him, on the 27th of April 1842, as alleged in the bill, and that he then refused to execute a deed of release; but he denied that the plaintiffs had, at any other time, demanded any other deed, or that they ever made to him any other tender of payment of damages, or that he ever refused to execute any other deed.
    The plaintiffs filed a general replication, and evidence was taken by both parties.
    This case was argued at the last September term, principally upon the evidence. The defendant’s counsel, however, contended, as matter of law, that specific performance should no4 be decreed, where the plaintiff has any other adequate remedy 2 Story on Eq. 23, 24: That the plaintiffs, in this case, mig apply to the county commissioners to assess the defendant’s damages, and that they held the land by virtue of their act of incorporation and the laying out and construction of the rail road: That specific performance was not a matter of right in the per tv seeking it, but of discretion in the court, and should not be decreed where it is not strictly equitable, or where the baigain is hard, or made under a mistake, or where there has been a great change, after the contract was made, in the property which is the subject of the contract: 1 Sugd. Vend. (Amer. ed. of 1836,) 245-248. 2 Story on Eq. 47, 53, 79-81. Meehan-ics Bank of Alexandria v. Lynn, 1 Pet. 376. King v. Hamilton, 4 Pet. 328. Daniel v. Mitchell, 1 Story R. 172. Mortlock v. Duller, 10 Ves. 305: And that there was such a want of mutuality in the contract set forth in the bill, as would induce the court to withhold the decree sought by the plaintiffs, even if there were no other objection to such a decree. 2 Pow. Con. 233, 234. 2 Story on Eq. 53.
    
      R. A. Chapman, for the plaintiffs.
    
      Wells &f W. G. Bates, for the defendant.
   The opinion of the court was made known at an adjourned term held in Hampden county, in January 1843.

Shaw, C. J.

This is a case in equity, in which the Western Rail Road Corporation seek the specific performance of a contract made by them with the defendant, previously to the definitive location of their road, by which he stipulated to convey to them in fee, on certain conditions, as much of his land as would be necessary to their rail road, at rates therein specified. The bill sets forth the agreement by which he stipulated to receive compensation at certain specified rates per acre, for the different kinds of land which the rail road might traverse, and a provisional allowance for fencing. Proof was offered of the execution of the contract, as also of the final location of the road, passing, to a considerable extent, over the defendant’s land, as also of the tender of the money, and demand of a deed conforming to the agreement.

The ground of defence is, that the defendant was deceived or mistaken, and led to execute an agreement different from that which he supposed he was executing; that he did not understand where the line was, as described in the agreement, but supposed the line contemplated to be adopted to be a different line from the one, over which the rail road was in fact located, and one, the adoption of which would have done him less damage.

This is mainly a question of fact upon the evidence, and has been so argued by the counsel, and considered by the court.

The court, in the main; accede to the principles of law, stated by the defendant’s counsel, as those upon which the defence is placed. In an application to a court of equity for a specific performance, a decree for such performance is not a matter of strict right, on proof of the agreement, but may be rebutted by showing that to require such an execution would be inequitable. A defendant, therefore, may not only show that the agreement is void, by proof of fraud or duress, which would avoid it at law ; but he may also show that, without any gross laches of his own, he was led into a mistake, by any uncertainty or obscurity in the descriptive part of the agreement, by which he, in fact, mistook one line or one monument for another, though not misled by any representation of the other party, so that the agreement applied to a different subject from that which he understood at the time; or that the bargain was hard, unequal and oppressive, and would operate in a manner different from that which was in the contemplation of the parties, when it was executed. In either of these cases, equity will refuse to interfere, and will leave the claimant to his remedy at law.

But, to establish either of these grounds of defence, the burden of proof is plainly on the defendant; and to bring his case within the former, he must show such mistake on his part, or some misrepresentation on that of the complainant, or his agent, seeking to enforce the performance of the contract. In doing this, it is not competent for the defendant merely to aver that he was under a mistake as to the description of the route, oi other subject matter of agreement, or, when the description was precise and clear, that he signed the agreement without reading or hearing it, where he had the means offered him of doing so. He must show an honest mistake not imputable to his own gross negligence.

One other consideration, which we think applicable to such a case, is this; that where a man has stipulated, for a certain con sideration, to permit a company to construct a road’ over his land, by any one of two or more routes, at their option, it is not competent for him afterwards to resist the performance of his agreement, by showing that he was induced to believe, either by his own notions, or by the representation of others, as to the preference of one over the other, that a particular one was adopted, which he did not expect; nor would this result be affected, if the other party, or their agents, had made such representation, as to the probability of their adopting one route in preference to the other, or of the relative advantages of each. Having, by the terms of the contract, stipulated for the right to adopt either, and stipulated to pay a consideration for such right of choice, e 11 representations respecting the probability of their adopting one rather than the other, must be considered as merged in the agreement; and if, in fact, the one route would cause more damage, and the land owner intends to claim larger compensation in one case than in the other, the alternative must be stipulated for in the agreement itself.

One objection was taken to this agreement, not, we presume, to its legality, but to the fitness and propriety of enforcing its performance in equity; which is, that it was not mutual, because, although the defendant bound himself to convey his land at certain prices, the company did not bind themselves to pay him those prices.

In the first place, the contract, being under seal, and made upon a nominal pecuniary consideration, was binding in law, without other consideration. Again ; it was conditional; it was the grant of a license to enter upon his land, and lay out their rail road over it, at their option. If they should not take his land, he would be entitled to no further compensation. But further; as this was a grant to them, on condition, of a license, with certain rights, interests and easements in the land, there would be good ground to hold, that if they accepted and acted upon this grant, they were bound by the conditions, and that an action would lie for the money. As where a grant is made by deed poll, the grantee paying money, or performing any other condition, an accep'ance of the grant binds the grantee to a performance of the condition, for which assumpsit will lie. Goodwin v. Gilbert, 9 Mass. 510.

But a more decisive, and perhaps more satisfactory answer is, vhat the direct stipulation of the defendant was to execute a qualified, defeasible conveyance of the land to the company, on certain payments being made. The payment was a condition precedent, and the company could obtain no benefit from the agreement, without first paying or tendering the stipulated rates of compensation. This was an ample security for the defendant, binding the company to a compliance with the agreement on their part, and renders the agreement reciprocal; and the condition subsequent, to be inserted in the deed to be made oy him, rendering it void if the rail road over his land should be discontinued, was a sufficient guaranty that the grant would not continue when the land should cease to be appropriated to that public use.

That such an agreement, if fairly made, is a legal contract, and that it affords a proper ground for a decree for specific perform anee in equity, we can have no doubt.

In executing public works, where private property must be taken for public use, the cost of the work, as affected by the compensations thus to be paid, enters largely into the consideration, both of the legislature, and of those agents and commissioners, who may be intrusted with the consideration of the subject, in determining, first, whether the work shall be undertaken at all, and, if so, then what route shall be selected. Such a decision must be influenced mainly by a comparison of the expense with the utility of several proposed routes. If it is to pass over lands covered with dwelling-houses, or otherwise of great value and cost, it would be a strong inducement to the adoption of a less expensive route, or operate as a decisive objection to the enterprise. But the owners themselves know the value of the property, and the prices at which they are willing to part with it, for the accomplishment of the proposed object taking into consideration the advantage, if any, which it may confer on their other property. A previous contract, stipulating provisionally for a grant of the land, or of a right of way over it, on certain specified terms, is well calculated to give authentic information, to prevent all mistakes and misunderstanding arising from mere verbal propositions and representations, and to seem i the rights of all parties.

Taking f ich a contract, when fairly made, on good considera-ron, without fraud or duress, to be perfectly legal and equitable, a specific performance, by a decree in equity, is plainly the only adequate remedy that such a public corporation could have. The use of the land, when the location is fixed, is absolutely essential to their franchise, and a compensation in damages, in an action at law, would afford them no relief. Indeed, the right to the use of the land, for a public purpose, is secured by the constitution and laws of the land, independently of any contract; and by their act of incorporation vested in the company, for the use of the public; and if a specific performance of the agreement, on the part of the land owner, were not given in equity, and the result were that he should obtain his damages in the mode pointed out by the statute, if they should exceed the amount stipulated for in the agreement, the company, in an action at law, on the contract, would recover back the same amount, in damages. If, therefore, the agreement is a valid and equitable one, this remedy, by specific performance, ought to be allowed, to avoid circuity of action.

With these considerations in view, the court have considered the subject as one of fact upon the evidence. There is considerable conflict of evidence, especially as to what took place at the defendant’s house, when the agreement was executed. Without stating the evidence at large, which is quite voluminous, the conclusions which we have come to, are these: That there was no fraud or false representation on the part of the company’s agent; that the route, described in the agreement, was clearly and definitely stated as the west line, or Child’s line, and was known to, or might easily have been known to, Babcock, the defendant, and was at least as well known to him as to the agent; that this was the line ultimately adopted by the company as the route of their road; that the agreement was read over to the defendant, before he executed it, with an honest purpose to enable him fully to understand it; that there was no mistake on the part of the defendant, as to the route expresse d in the agreement; and that, if he was induced, from any cause, to suppose that the company would not pursue the route they did, but adopt another, which he supposed would be more benefh tal to them, and better for him, it is not a mistake into which he was led by the company’s agent, nor one which affects this agreement.

And the result of the opinion of the court is, that the agre» ment is valid in law, that the defendant has shown no sufficient grounds to excuse him from a performance in a court of equity, and therefore that the complainants are entitled to a decree for such specific performance.

After the foregoing opinion was delivered, the counsel for the defendant moved for a rehearing. The motion was granted, and at the present term, another argument was addressed to the court, in behalf of the defendant.

Shaw, C. J.

A rehearing of the cause has been had, before the full court, upon several grounds. 1. That the complainants are chargeable with laches in not having commenced their suit earlier. Under the circumstances, we can see no ground for this objection. By the location, the complainants are and have been in the possession and actual use of all the privileges, which the performance of the defendant’s agreement would give them, and all which they have occasion for; and all which they seek by this suit is a confirmation, by the deed stipulated for, of these privileges, as their right.

2. That the company do not show that they accepted the defendant’s contract, until this suit was commenced. We understand that Mr. Morris was the authorized agent of the company, and that the deed to them was made pursuant to the instructions given him for that purpose, and therefore the delivery of the defendant’s deed to him was a delivery to the company, and his acceptance of the deed was an acceptance by the company. By such acceptance, the company were bound to the performance of the stipulations in it, on their part to be performed. The court are asked, by way of test, whether the defendant could have maintained an action against the company, as soon as they had located their road over his land, and taken possession of it, at the rates stipulated for in this contract. We think he could, and that this follows from the principle already stated, viz. that the grantee, in a deed poll, is bound, by its acceptance, to the performance of conditions stipulated to be performed on his part; and such obligation not arising from specialty on his part, assumpsit will lie to enforce it.

3. Another ground is inadequacy of consideration, because the damages are so much greater thrm were contemplated when the contract was made. Undoubt ,dly gross inadequacy of consideration is a good reason for not enforcing the specific performance of a contract. It is somewhat difficult to deal with this question of inadequacy of consideration, when the circumstances are so changed by the location of the rail road itself. At the present time, the business of the vicinity may have greatly increased, and the value of all the lands adjacent or near to the rail road must be estimated as it is enhanced by the establishment of such a great public work and thoroughfare in its neighborhood ; whereas, at the time this contract was made, it was valued as plough-land, mowing, pasture and wood-land. It was at a time when the company had some latitude of choice, in determining where to build this great public work, and especially as to the precise route they would adopt. Besides; the defendant, when the route was uncertain and unsettled, might be induced, very justly and wisely, to offer his land at an under valuation, in respect to the enhanced value of the residue of his property, to be effected by the location of this road, in that direction. So far as this had any influence, if it had any, it was a consideration for the defendant’s contract, in addition to the pecuniary compensation to be paid for the land, and renders it more difficult to draw any conclusion of inadequacy of consideration from the stipulated rates of payment for the different kinds of land taken. Under these circumstances, we are of opinion, that to invalidate this contract, the inadequacy of consideration must be so gross, and the proof of it so great, as to lead to a reasonable conclusion of fraud or mistake; and we can perceive no such proof, nor any thing approaching to it.

4. Another ground relied on is, that, in the opinion formerly given, the court intimated that in case Babcock should receive a larger amount of compensation, by the award of commissioners, or the verdict of a jury, than he had stipulated by his contract to accept, the company, in an action at law on the contract, would have a right to recover back the difference; and this is supposed to be incorrect.

That proposition was not necessary to the decision of the cause, and it was put by way of illustration, in order to strengthen the conclusion that this was a fit case for a specific performance of the defendant’s contract ty a decree in equity, for this, among other considerations, that a suit at law would lead to the same result, by a circuity of action.

Our view was this: Supposing the defendant’s contract to be a valid and legal one, subject to no legal or equitable objection, then he was bound by it to execute a deed to the company, on payment of the stipulated compensation for his land ; and his refusal to do so, on demand and tender, would be a lweach. In a suit at law, on such breach shown, the plaintiffs would be entitled to recover such sum as would indemnify them for the actual and direct loss sustained by the non-performance of the contract. Such we understand to be the rule of law, in regard to damages. There may be a difficulty in fixing this by proof; but, when fixed, it is a rule of law as certain as the rule of damages on the non-payment of a note of hand. Such is the rule of damages on breach of a covenant of seizin or right to convey, when no estate passes; it is the sum actually paid, because that is the sum actually lost by the breach. Bickford v. Page, 2 Mass. 455. 4 Kent Com. (3d ed.) 474, 475. If the consideration actually paid cannot be ascertained, the damages shall be determined as nearly to it as the proof will admit. Smith v. Strong, 14 Pick. 128. Where a party stipulated to give his land for a public improvement, the value of the land was deducted from his other damages sustained, in an application for damages. Foster v. Boston, 22 Pick. 33. So m a covenant against incumbrances, the sum actually paid to remove the incumbrance is the measure of damages. Prescott v. Trueman, 4 Mass. 627. Brooks v. Moody, 20 Pick. 474. Indeed, the rule is too familiar to require many authorities to be cited in support of it.

Now, the view of the court was, that if the defendant here could proceed and obtain an award for damages larger than the sum which, by his contract, he had stipulated to take, then the loss sustained by the plaintiffs would be the difference between what they should thus be compelled to pay, under the award of commissioners, and the sum the land owner had agreed to receive in full satisfaction. That sum would be the exact amount of their loss; and of course that sum would be the measure of their damages, in a suit for breach of this contract. It still appears to us that this is a correct view of the subject, and that, under the circumstances of this case, a decree for a specific performance will bring the parties to the same result, to which they would come by a circuity of action, if it were refused.

We are aware that this is not the result in ordinary cases, and depends upon the peculiar circumstances of this case. Ordinarily, when a decree for a specific performance of a contract to convey lands is refused by a court of equity, for any cause, the covenantor holds and retains the land, and the covenantee’s only remedy at law is to recover a sum of money in damages. But, in the present case, the complainants have a right by law to take and hold the land for public use, to the same extent which they could do by force of the contract, and the landholder’s only remedy would be to recover a sum of money as compensation for his land. When the sum, which he should thus recover by the award of commissioners, comes to be compared with the amount to be received by the contract, the difference is mere matter of computation ; and if the owner of the land had gained any thing by the operation, it would be a gain m money, and a gain precisely commensurate with the company’s loss. But, in either event, whether by the operation of law, or by force of a decree for specific performance, the company holds the land.

Several other considerations were brought to the attention of the court, in behalf of the defendant, on the rehearing, which have been fully considered; but upon the best deliberation which they have been able to bestow upon a revision of the whole subject, they adhere to the opinion formerly expressed, that the plaintiffs are entitled to a decree for specific performance. 
      
       The defendant’s counsel, on this point, cited Watson v. Reid, 1 Russ. & Mylne, 236.
     