Opinion,

This proceeding is not a bill in equity to compel the specific performance of a contract for the sale of land, nor is it an action to recover damages for the breach of such a contract. On the contrary, it is an action of ease brought by the owner of land against a railroad company to recover consequential damages for injury to, without taking any part of the plaintiff’s land.

On the trial, the defendant gave in evidence an agreement in *384writing and under seal between tbe parties, which was made after the action was brought and while it was pending, the substance of which was that the parties agreed to submit the question of the valuation of the plaintiff’s premises to persons named, and that thereupon the defendant should pay the amount of the valuation to the plaintiff, upon his giving a good fee-simple title for the premises to the defendant clear of encumbrances. It was further agreed that the price, when paid, should operate as a release of all claims of every character which the owner could make, from the location of the road to the date of the purchase. The defendant further gave in evidence proof that a valuation was subsequently made by the persons named; that the defendant thereupon tendered payment of the amount of the valuation, together with a deed for execution, and also proper releases of liens; but that the plaintiff positively refused either to receive the money, or to execute any deed for the premises, or to obtain any release of liens. He also gave notice that he would not be bound by the valuation of the appraisers, because they had not given him as much as he wanted. In short, he simply violated his contract, and then proceeded to try his action to recover damages, in entire disregard of his agreement.

The learned court below instructed the jury that the agreement and the action under it, were not a defence to the present action, and withdrew it from the consideration of the jury altogether. No reason was given by the court for this ruling, and, no opinion having been filed, we are not informed as to what the reasons were. As we are not able to take that view of the contract between the parties, we would have been glad to know upon what grounds the learned court proceeded in rejecting the agreement altogether. It is a perfectly lawful contract, which the parties were' entirely competent to make. It was carried into effect by the appraisers having made the valuation in question; it was never revoked by the plaintiff, and the defendant tendered full compliance with its terms. Why was not the plaintiff bound to perform it on his part ? It is contended by the learned counsel for the appellee that the only remedies available to the defendant under it, would be by a bill for specific performance, or an action to recover damages for its breach, and that at most it can be considered *385as an accord and satisfaction, but void as a defence, because there was no satisfaction. But these propositions do not meet the question. The agreement is set up by the defendant to prevent the recovery of damages, in accordance with the terms of the agreement. Why is it not a defence ? It is no answer to say that the defendant might have filed a bill for specific performance, or might have brought an action to recover damages for its breach. The defendant has done nothing of that kind. It has simply asked that the plaintiff shall be held to his contract. No bill for specific performance has been filed, and the rules which pertain to that kind of remedy have no place in the discussion. The same is true as to the action to recover damages for breach of the contract. No such action has been brought, and the consideration of that subject is not pertinent. The question simply is, shall the plaintiff be permitted to recover damages for a consequential injury to his land, and also keep the laud, when he agreed with the defendant that he would release the damages if the defendant would pay him for the land a price to be fixed by persons agreed upon, and the defendant has offered to pay the price and tendered the money for it? Why should he be permitted to do this in violation of his contract ?

There is nothing contrary to law in such a contract. In the case of North Branch Ry. Co. v. Swank, 105 Pa. 555, we sustained such a contract, and compelled the owner to abide by it, although it was not by any means so precise and specific as this one, and contained no express provision releasing damages ; and although, also, in that case the land of the owner was taken, whereas here it is not. We held there that “ an agreement between a landowner and a railroad company to sell the latter a right of way across the premises of the former, covers all damages, of whatsoever sort, suffered by the landowner, all for which lie is legally entitled to compensation.” In the present case, there is an express provision in the contract that the payment of the price shall release “ all claims of every character that the owner could make.” It cannot be that the owner shall be permitted to refuse payment of the price, and then say, “ The price has not been paid, and therefore I am not bound.” Moreover, in this case no land is taken by the defendant. If the plaintiff chooses, he can keep his land, all of it, but it can*386not be tolerated that he shall both keep his land and recover damages contrary to his agreement besides; and therefore it is that the refusal of the wife to join in the deed for the land is of no possible consequence. The only result of such refusal is that a conveyance of the land cannot be compelled without a tender of the whole price for a deed signed by the husband alone. But here there is no question of compelling a conveyance of the land. The defendant is not obliged to have such a conveyance in order to make out its defence. The only question is, shall the plaintiff keep his contract ? We know of no reason why he should not. If he choose to break his contract, and refuse to receive what he agreed he would receive for his land, with a release of his consequential damages, he can keep his land, but he cannot keep his land and recover the damages both. There is no question of accord and satisfaction in the case, and a discussion of that question is without relevancy.

The first, second, third, and fourth assignments are sustained, and on them the judgment is reversed.

Judgment reversed, and new venire awarded.