Ashley, D. & N. Ry. Co. v. Cunningham

• Citation: 196 S.W. 798
• Decision Date: 11 June 1917
• Docket Number: (No. 31.)
• Parties: ASHLEY, D. & N. RY. CO. v. CUNNINGHAM.
• Court: Supreme Court of Arkansas

196 S.W. 798

ASHLEY, D. & N. RY. CO. v. CUNNINGHAM.

(No. 31.)

Supreme Court of Arkansas.

June 11, 1917.

Appeal from Circuit Court, Ashley County; Turner Butler, Judge.

Action by W. R. Cunningham against the Ashley, Drew & Northern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and cause dismissed.

Henry & Harris, of Monticello, and Gaughan & Sifford, of Camden, for appellant. Williamson & Williamson, of Monticello, for appellee.

McCULLOCH, C. J.

Appellee instituted this action against appellant to recover damages sustained by reason of the breach of an alleged contract of employment, in consideration of the execution of a right of way deed. Appellee alleged in his complaint that he joined in the execution to appellant of a right of way deed through and over certain lands of the grantors, and that as a part of the consideration for the execution of the deed appellant agreed to employ him as brakeman at a salary of at least $50 a month, for and during his lifetime, or as long as he was physically able and willing to give the service. Appellant denied the agreement, and the cause was tried before a jury upon that issue; the trial resulting in a judgment in favor of appellee for the recovery of damages on account of the breach of the contract. The deed recited a consideration of $1 paid, and contained the following provision, which was inserted after the description of the land, and preceding the habendum clause, to wit:

"Provided said railway company shall give the said Cunningham position as brakeman (regular work) salary not less than $50.00 per month."

Appellee was permitted to testify, over objections interposed by counsel for appellant, that the person who solicited him to execute the right of way deed, and who procured the same for appellant, entered into an oral agreement with him in consideration of the execution of the deed that the company would give him a job as brakeman at a salary of $50 per month, and that "I was to have the job as long as I was physically able and willing to give the service." The ruling of the court in admitting the evidence is assigned as error. We are of the opinion that this assignment of error is well founded, as the testimony was incompetent for the reason that it is violative of the rule against the admission of oral testimony to alter or extend the terms of a written contract. Counsel for appellee defend the ruling of the court in reliance on some of our cases which hold that the rules of evidence are not violated in permitting oral testimony to establish an additional consideration for the execution of a deed or contract. Kelly v. Carter, 55 Ark. 112, 17 S. W. 706; St. Louis & North Arkansas Rd. Co. v. Crandell, 75 Ark. 90, 86 S. W. 855, 112 Am....