Ashley, Drew & Northern Railway Company v. Cunningham

• Decision Date: 11 June 1917
• Docket Number: 31
• Citation: 196 S.W. 798,129 Ark. 346
• Parties: ASHLEY, DREW & NORTHERN RAILWAY COMPANY v. CUNNINGHAM
• Court: Arkansas Supreme Court

196 S.W. 798

129 Ark. 346

ASHLEY, DREW & NORTHERN RAILWAY COMPANY v. CUNNINGHAM

No. 31

Supreme Court of Arkansas

June 11, 1917

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

Judgment reversed and cause dismissed.

Henry & Harris and Gaughan & Sifford, for appellant.

1. Incompetent testimony was admitted as to a verbal contract of employment made as a consideration for the right-of-way deal. This was error because the whole contract was reduced to writing and embodied in the deed, and oral evidence was not admissible to extend, modify or contradict the terms of the written instrument, and because Jack Curry was not the agent of appellant and the evidence does not show it had any knowledge of any agreement other than that written in the deed. Besides the alleged verbal contract, or the one expressed in the deed is unenforceable for lack of mutuality and definiteness. 64 Ark. 388, 406.

2. A specified time for service by the employee was necessary to make a contract. Ib. 406; 38 Am. & E. Railroad Cases, p. 16; 37 Minn. 315; 39 Ark. 66.

3. If there was a breach, it was waived. 77 Ark. 168.

4. The instructions were erroneous and the verdict excessive.

Williamson & Williamson, for appellee.

1. The evidence was not incompetent and was properly admitted as showing the consideration of the deed for right-of-way and what the contract really was in its entirety. Only a part of the contract was in writing--the balance was verbal. 51 Am St. Rep. 289, 293; 55 Ark. 112, 115; 75 Id. 90, 143; 90 Id. 426; 6 R. C. L. 857; 1 Labatt Master & Ser (2 ed) 323, 328, 332, 334; 87 Am. St. Rep. 831.

2. No mutuality was necessary. 87 Am. St. Rep. 831. A contract for "permanent employment" is not void for uncertainty indefiniteness, want of mutuality, or other reason, but will be enforced. 57 Am. St. Rep. 488; 84 Id. 575; 112 Mich. 651; 125 Id. 252; 71 N.W. 1; 60 Mo.App. 223; 1 Labatt M. & S. 554, and note and cases cited; 6 L. R. A. (N. S.) 439, 446; 64 Ark. 409.

3. Even had the contract sued upon been a part of the deed, appellee would not be bound to enforce the forfeiture; but could sue for damages for breach. 26 Ark. 628; 59 Id. 411; 5 Am. St. 680; 36 Id. 350; 8 R. C. L. § 158-9, pp. 1100-1; 75 Tenn (7 La.) 397; 1 Labatt M. & S., p. 1101, and notes 7-8.

4. There is no error in the instructions and the verdict is not excessive. 51 Am. St. 298; 87 Id. 826; 173 U.S. 1; 134 N.W. 815, and cases cited, supra; 110 N.Y.S. 787; 71 N.W. 148; 125 S.W. 981; Wood on Master & S. (2 ed.) p. 256-7, and many others. See 188 S.W. 1186; 9 Cyc. 839, 698; 6 R. C. L. 1028, § 387. As a whole the instructions are correct and the verdict sustained by legal evidence.

OPINION

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 $ 50.00 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 $ 1.00, paid, and contained the following provision, which was inserted after the description of the land, and preceding the habendum clause, towit:

"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 $ 50.00 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 permitting 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. 89, 86 S.W. 855; Magill Lumber Co. v. Lane-White Lumber Co., 90 Ark. 426, 119 S.W. 822.

The doctrine of those cases is, however, that the recitals of a deed concerning consideration do not form a part of the contract itself, and that it does not operate as a variance of the terms of a contract to prove an independent consideration. The difficulty of applying that doctrine to the present case lies in the fact that the parties introduced into the writing the contract...