October 17, 1902. The opinion of the Court was delivered by The object of plaintiff's action was to require the defendant to specifically perform its agreement to erect a proper depot at a station called "Borden" on its railroad, on the acre of land conveyed by plaintiff to the defendant by deed, and to have defendant pay to plaintiff $1,000 for damages for defendant's failure to do so at an earlier date, or, that upon its failure to erect said depot, *Page 533 the defendant shall be required to pay to plaintiff the sum of $14,850 as damages for breach of its contract. The defendant denied, by its answer, that plaintiff was entitled to any relief as prayed for. All the issues of law and fact were referred to the master, H.F. Wilson, Esq., who after taking a great deal of testimony and after full argument, reported that (referring to the deed executed by plaintiff and others to the defendant on the 5th May, 1900):
"At the time of the execution of said deed there was some litigation pending between the plaintiff and defendant relating to compensation for the lands of the plaintiff then being occupied by defendant for its right of way. In compromise, adjustment and settlement of this litigation, the said deed was executed by the said George W. Murray and others and accepted by the said defendant company, who produced it under notice in this case. The consideration set out in said deed is as follows: `For and in consideration of the sum of $150 to us in hand paid by the Northwestern Railroad Company of South Carolina, a railroad corporation duly chartered under the laws of said State, and its covenant and agreement to establish and maintain a freight and passenger depot at a station called "Borden," on said railroad, in said county.' There is also the further stipulation set out in said deed, `And it is further covenanted and agreed that in the event that the said Northwestern Railroad Company, its successors or assigns, shall not establish a freight and passenger station at said place called "Borden," or having established such station shall cease to maintain the same, then and in that event the right of way and easement hereby granted shall revert to the grantor, George W. Murray, above named.'
"It is conceded that the $150 was paid to the said plaintiff by the said defendant, but it is contended that the freight and passenger depot has not been established and maintained at the station called `Borden,' and it is for the specific performance of this part of the agreement that this action is brought and for damages for such non-performance *Page 534 of the contract. The defendant contends that the terms of the contract have been complied with. Some of the witnesses for the defendant testify that there are many kinds of depots and stations — from a mere flag station, where there are no buildings at all, only a place usually a public highway crossing or a railroad side track, where passengers or freight or both are put off and taken on, and where there is no agent to attend to the company's business, to the most modern depot with all its equipments and conveniences — and that the expression in the deed above referred to, `freight and passenger depot,' might mean either the one or the other or any intermediate kind. The plaintiff offered parol testimony to explain the meaning of the expression used in said deed, `freight and passenger depot,' and to show what kind of a `freight and passenger depot' was intended by the parties plaintiff and defendant at the time the said deed was executed and delivered by the plaintiff and received by the defendant. I allowed this testimony to come under the authority of the case of Raply v.Klugh, 40 S.C. p. 145, and other authorities cited by plaintiff. This parol testimony showed that the `freight and passenger depot' to be established and maintained at the station called `Borden' was to be similar `to the freight and passenger depot' then established and being maintained with a resident freight and passenger agent at a station called `Dalzell,' on said railroad, some five miles from the said station called `Borden.' That soon after the execution of said deed the defendant company built at the station called `Borden' a freight wareroom some 15 feet by 16 feet in dimensions, with platforms extending the length of same in front and rear, such platforms being six feet wide. That subsequent to the commencement of this action the said defendant company built at the station called `Borden' an `umbrella shed' for the accommodation of passengers. That the station called `Borden' was known as a flag station, where trains only stop upon signal or for the discharge of passengers or freight. That tickets were sold to the said *Page 535 station called `Borden' from other points, and that freight, when the charges were prepaid, was billed to `Borden,' but that no tickets were sold at `Borden' for other points. That there was no resident bonded agent of the defendant company at `Borden,' some arrangements having been made with Mr. Folk, who kept a store a few yards from the said wareroom, when there to deliver freight to parties calling for same. This service was paid for by defendant company by a free pass over its said road. The testimony also shows that the plaintiff, George W. Murray, has bought out all the reversionary interests of the parties (other than himself) who signed the deed above referred to and marked in evidence exhibit `S.'
"The plaintiff offered testimony as to the value of the land of the plaintiff occupied by the defendant company as a right of way. This testimony was objected to by the defendant upon the ground that it was irrelevant. I sustained the objection of the defendant for the reason that the pleadings in this case confined the proof to the fact as to whether or not the defendant company has complied with its contract as set out in the deed. See ruling on page 66 of the testimony. Even if such testimony is relevant to the issues in this case, that offered was so vague and indefinite that I have been unable from the testimony to arrive at any satisfactory conclusion as to the value of such right of way.
"I find as matter of fact from the testimony that the plaintiff has bought all the reversionary interests of the parties (other than himself) who signed the deed in evidence in this case, marked exhibit `S.'
"I find as matter of fact from the testimony that the expression, `freight and passenger depot,' as used in said deed in evidence, exhibit `S,' was intended to mean and did mean such a freight and passenger depot as was then established and maintained with a resident freight and passenger agent at `Dalzell,' a station on the said Northwestern Railroad.
"I find as a matter of fact from the testimony that the said defendant company has not established and maintained *Page 536 such a freight and passenger depot with a resident agent at the station called `Borden' on the said Northwestern Railroad.
"I find as a matter of fact from the testimony that the plaintiff, George W. Murray, has been damaged by the failure of the said defendant company to establish and maintain such a freight and passenger depot at the station called `Borden,' and that the amount of such damage has been the sum of $500 up to the date of this report.
"The defendant claims as matter of law that the complaint should be dismissed, for the reason that the contract as set up in the complaint and in the deed in evidence, exhibit `S,' is such a contract as the court of equity cannot and will not enforce by specific performance. This brings up the only question of law in the case as I see it. It seems to be the general rule in this State and elsewhere that courts of equity will not enforce by specific performance contracts to construct buildings and make repairs, for the reason that it would be impracticable to, if not impossible, for an officer of the Court to carry out such decree. 22 Am. Eng. Enc. of Law, pg. 996, vol. 22; McArter v. Armstrong, 32 S.C. pg. 225; Columbia Water Power Company v. Columbia, 5 S.C., pg. 255. This rule, however, that courts of equity will never assume jurisdiction to enforce a contract which requires some building to be done, is not universal. They have enforced such contracts from the earliest days to the present time. A few cases may be referred to as illustrating the power vested in a court of equity to compel the specific performance of contracts similar to the one at bar. InStorer v. Railroad Company, 2 Younge C.N.R., 48, the Court compelled the defendant to construct and forever maintain an archway and its approaches. The Court said there was no difficulty in enforcing such a decree. In Wilson v. Railroad Company, L.R., 9 Eq., 28, the defendant was compelled to erect and maintain a wharf. See, also, Waterman on Specific Performance of Contracts, sections 11, 28, 29, 30. In Lewis on Eminent Domain, par. 296, *Page 537 agreements by a railroad company to build crossings or fences, or to locate and build a depot, or to do other things for the benefit of the grantor, may be specifically enforced. It is no answer to suit for specific performance that a specific description of the thing to be done is not contained in the deed or contract. That which is reasonably suitable under the circumstances to answer the purpose intended is what the contract implies. `L. granted the right of way to a railroad company over his premises, in consideration of which the company agreed to erect and maintain bridges over certain crossings, and also to erect at or near Excelsior Spring a neat and tasteful station building, to be called Excelsior Spring, at which all regular trains should stop. The company entered and built its road, but refused to comply with its agreement.' On a bill for specific performance it was contended by the company that the agreement was too indefinite to be enforced; that the style and plan, size and materials of the structure were not specified. But the Court held otherwise. `To insist that the railroad cannot build a bridge because they do not know whether it should be of wood or iron, or gold or platinum, is a poor excuse. A bridge suitable for a highway crossing is what was intended, and that is definite enough.' In Bisham's Principles of Eq., 6th ed., pg. 501, it is said: `If within the power of the Court to supervise the performance of the contract, and the equities which justify its specific enforcement exist, the agreement will be enforced. And of late the supervisory power of the Court has been extended to cases which it formerly might not have been thought to cover. Thus courts of equity have assumed jurisdiction to enforce the performance of contracts to operate railways, for the enforcement of agreements between railroad companies for the use of their tracks and the like; and this advancement in remedial equity must be deemed not only serviceable in the interest of the business affairs of men but justified by the inherent elasticity of chancery powers.' The authorities above cited, while tending to show `advancement in remedial equity' and may be `justified *Page 538 by inherent elasticity of chancery powers,' still none of them go to the extent of enforcing by specific performance such a contract as the one at bar. Here the Court is called upon to specifically enforce the establishment and maintenance of a freight and passenger depot. Granting that the contract is made definite by the parol evidence making the freight and passenger depot to be established and maintained at `Borden' similar to that established and maintained at `Dalzell,' still it would be impracticable, if not impossible, for an officer of the Court to carry out its decree requiring such a freight and passenger depot to be established and maintained. To do so would require the supervision, first, of the building and then of the daily recurring duties of the agent, and that for an indefinite period of time. It is asking the Court to go a long way towards assuming, if not the direction and control, at least the supervision of the defendant company's business. This, it seems to me, the Court will not undertake to do. I have with great reluctance reached the conclusion that the contract in this case, even as explained by the parol testimony, is such a contract as the court of equity cannot enforce by a specific performance, yet I so find as matter of law. All of which is respectfully submitted."
Both sides excepted to this report. The exceptions came on to be heard by his Honor, J.H. Hudson, as special Judge, who sustained the plaintiff's exception and also so much of defendant's exceptions as related to a recommendation of the master that defendant should pay plaintiff $500 damages. The Circuit Judge held that it was competent to introduce testimony to show what the surrounding circumstances were when the defendant covenanted to erect a freight and passenger depot at "Borden," so as to show what was in the minds of the parties to this action at that time, to wit: the deed of the plaintiff made in May, 1899. He also held the contract was to be enforced specifically by requiring the defendant to erect at once a depot for freight and passengers at "Borden" like that of defendant at "Dalzell" and *Page 539 at "Rembert," two stations on defendant railroad, and also to have an agent to sell tickets at "Borden."
The defendant has appealed from Judge Hudson's judgment on twelve separate grounds. The Reporter will incorporate in his report of this, the twelve exceptions as well as the decree of Judge Hudson. These exceptions may be grouped as follows: The first five exceptions, relating as they do to the alleged error of the Circuit Judge in holding that it was competent to receive and consider testimony going to show the circumstances surrounding and moving the parties in the execution of the contract to erect a freight and passenger depot at "Borden" on defendant's railroad; the sixth exception, relating as it does to whether the defendant's building at "Borden" was such as was agreed upon by and between the parties to this action in May, 1899, when the deed and covenant were made; and lastly, the seventh, eighth, ninth, tenth, eleventh and twelfth exceptions, relating as they do in one form or another to the power of the court of equity to decree that a contract to build a depot on its road should be specifically executed, including in this question whether the decree was sufficiently definite in its directions.
First. It seems to us that this Court has already settled the question as to the competency of testimony addressed to the making clear an agreement whose terms need definiteness. It has long been settled law in the Courts of this State as well as in the United States Supreme Court that it is competent to show by evidence outside of a deed or other instrument in writing, what was the true consideration as between the parties thereto. It is a matter of frequent occurrence in our Courts that testimony is competent,aliunde the deed, to show that a deed of conveyance absolute on its face was simply a mortgage to secure the loan of money. Campbell v. Linder, 50 S.C. 169, 27 S.E.R., 648. So in regard to the use of the word "dollars" in a contract, the value of those dollars may be ascertained by testimony outside of the terms of the contract itself. Thormgton *Page 540 v. Smith, 8 Wallace, 1; Confederate Note Case, 19 Wallace, 548. All these things have been allowed, not as adding to or varying a written instrument, but in the light of the surrounding circumstances, to show what was in the minds of the contracting parties. As was remarked at the beginning of our consideration of this point, our own decisions seem conclusive of this point. In this case at bar the question is what did the parties mean by the use of the words, "a freight and passenger depot" to be erected by the defendant at the station called "Borden?" As was remarked by the appellant, great latitude exists as to the structures known as freight and passenger depots, ranging by his argument from the fine union station at Columbia, S.C. to the "umbrella shed" at present standing at "Borden." These words can be explained by extrinsic verbal testimony. Rapley v. Klugh, 40 S.C. 134, 18 S.E.R., 680; Willis v. Hammond,41 S.C. 153, 19 S.E.R., 310. Another apt illustration is furnished by the case, Stoops v. Smith, 1 Am. Rep., 85, when the Court in Massachusetts received parol testimony to show that "advertising chart" meant a chart of a certain material, to be published in a certain manner as verbally agreed upon by the parties. In the case at bar, the plaintiff was shown the lumber on the ground requisite for a depot just like that erected by the defendant at "Dalzell station." The object of the plaintiff was to secure an attraction to outsiders to settle on his lands around "Borden." We overrule these exceptions.
Sixth exception. We cannot sustain this exception. It is patent to the eye that the unpretentious erection at "Borden" can scarcely be dignified as a depot for passengers. An "umbrella shed" is scarcely a depot for passengers. This exception is overruled.
Lastly. The master held that a court of equity could not undertake the task of a specific performance of the contract to erect a "depot for freight and passengers" at "Borden," with a resident ticket agent, c. The Circuit Judge held otherwise and so decreed. Was he in error? It is *Page 541 asserted that the text writers and decisions vary on this subject. Whenever decisions are opposed to each other, it is always well to ascertain the grounds of the varying opinions of Judges — so as to learn if there is a principle upon which they are divided. The respondent in his suggestive argument on this point thus states his position:
"There is a distinction in the cases between the two classes of contracts for construction: 1. Building contracts, where one agrees for a money consideration to build a house for another on that other's land. Such contracts are not generally specifically enforceable for the reason that the injury done by a breach are easily measured and can be fully compensated in money. See note on pages 996 and 997 of 22 Enc. Law, where we read. `The rule is almost universal that a covenant to build may not be enforced specifically, for the execution of such contract would be impracticable if not impossible for a court to supervise, whereas the remedy of damages would afford a full redress.' That is to say, the Court cannot act as architect, and another builder may be bad and damages for the increased cost and delay recovered in action at law for damages.
"The second class is where one gets land from another upon the consideration of the grantee's erecting at his own expense a building on land actually conveyed upon the conditions that such building should be erected thereon. Miller calls attention to the fact that in these latter cases the building was to be done on the land of the person who agreed to do it (as in the case at bar), `the consideration for the agreement was the sale or conveyance of the land on which the building was to be erected, and plaintiff had already, by such conveyance on his part, executed the contract (as in the case at bar), and the building was in some way essential to the use or contributory to the value of adjoining land belonging to the plaintiff' (as in the case at bar). This decision was in 1863. So that 22 Enc. Law. p. 996, shows the law to be just what we claim it to be. Section 296 of Lewis Em. Dom. (1st edit.), also sustains us. In Hubbard v. K.C., *Page 542 St. J. C.B.R. Co., 63 Mo., 68 (cited by Lewis,) the Court held that a plaintiff who relinquished his right of way for the location of a depot thereon, might after entry by the railroad have his remedy in equity for a specific performance of the agreement to erect the depot — citing Aiken v. A.V. R. Co., 26 Barb., 289. The case of Lawrence v. Saratogac. R. Co., 36 Hun., 467, is strong in support of plaintiff's contention. It held that where a railroad enters upon land and constructed tracks and structures so that it could not be restored to its original condition, the railroad company's contract to build a bridge at the east line and a `neat and good overhead bridge near my west line;' and `erect a neat and tasteful station for the accommodation of passengers,' would be enforced and was sufficiently explicit. And see Bispham's Prin. Eq. (6 edit., p. 501, 4th edit., p. 140), and5 S.C. 255. McCarter v. Armstrong, 32 S.C. 204, is inapplicable, because the case was clearly one that could be compensated in damages — and, indeed, stipulated damages were fixed — and because the proper drainage of lands was a matter difficult of ascertainment on rule to show cause why the decree had not been carried out. But in our case a decree directing defendant to erect at `Borden' a freight and passenger depot like that now at `Dalzell,' `a station on its own railroad, can be readily enforced.'"
To our mind the case at bar presents the case where the plaintiff has conveyed the land whereon the depot is to be erected; that the consideration moving to this conveyance was the erection by the defendant of a depot for freight and passengers which the plaintiff reasonably expected would enhance the value of his surrounding lands; whereas the inferior depot erected, with no ticket office or resident agent there located, was not calculated to enlist the persons desirous of locating there to do so. We think Justice Miller pointed out in the quotation of his opinion the true grounds for an interference by the court of equity of specific performance. We do not see any ground upon which to base a criticism of Judge Hudson's decree as indefinite. There are *Page 543 the two depots, the one at "Dalzell" and the other at "Rembert," as models for the depot. An agent is easily supplied. These exceptions are overruled.
It is the judgment of this Court, that the judgment of the Circuit Court be and hereby is affirmed.
MR. JUSTICE GARY concurs in the result.