English v. New Orleans & North Eastern R.R. Co.

• Decision Date: 18 December 1911
• Docket Number: 15,188
• Parties: W. H. ENGLISH v. NEW ORLEANS & NORTH EASTERN R. R. Co. [*]
• Court: Mississippi Supreme Court

56 So. 665

100 Miss. 575

W. H. ENGLISH v. NEW ORLEANS & NORTH EASTERN R. R. Co. ^[*]

No. 15,188

Supreme Court of Mississippi

December 18, 1911

APPEAL from the circuit court of Lauderdale county, HON. JNO. L BUCKLEY, Judge.

Suit by W. H. English against the New Orleans & North Eastern Railroad Co. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Fewell & Cameron, for appellant.

Questions involved.

1. What law governs the alleged contract.

(a) The law of Louisiana, or

(b) The law of Mississippi.

2. Was it oral or written contract sued on.

(b) Is the oral agreement merged into the written release.

(c) If merged, is oral evidence as to different consideration inadmissible.

1. Under Mississippi law.

2. Under Louisiana law.

We shall take up the first branch of the law referred to above.

We think under all of the authorities that this contract is governed by the laws of the state of Louisiana (the lex loci controls). 22 Am. & Eng. Ency. Law, 1322. Citing, 27 Miss 801; 2 How. 837; 34 Miss. 181; 1 S. & M. 176; 9 S. & M. 544; 59 Miss. 152; 42 Miss. 444.

If the alleged contract is to be construed according to the laws of Louisiana then we have no doubt but that the contemporaneous verbal agreement is perfectly binding and enforceable.

If the court should by any reasoning determine that the contract should be governed by the laws of Mississippi--or that the contract was to be performed in Mississippi and thereby make the laws of Mississippi applicable to the rights thereunder--we say that under the laws of Mississippi parol evidence was admissible to prove a different or further or another or to contradict the consideration expressed in the written instrument. See 44 Miss. 137; 45 Miss. 129; 57 Miss 615; 57 Miss. 689; 67 Miss. 75; 74 Miss. 549; 84 Miss. 509; 84 Miss. 513.

McWillie & Thompson and A. S. Bozeman, for appellee.

It is clearly evident therefore, both from the pleadings and from the testimony that the alleged contract for permanent employment, sued upon by the plaintiff, was a verbal promise--an oral agreement to give the plaintiff permanent employment in consideration that he would release the appellees from all damages growing out of his personal injuries.

It is further apparent that this alleged oral agreement was contemporaneous with the written contract signed by the plaintiff by which he contracted to release the appellees from all damages for his personal injuries, in consideration of the sum of seven thousand dollars in money;

Or, in other words, the plaintiff's contention and testimony is that the contract and agreement entered into between Mr Curran and the plaintiff rested partly in parol and partly in writing--a thing which cannot legally be.

And this is a simple case of an attempt on the part of the plaintiff to supplement a written contract by parol evidence, so as to extend its terms to cover a matter which the written instrument excludes.

The written contract, which the plaintiff admits that he executed on the 4th day of August, 1908, some five hours after the negotiations between himself and Mr. Curran, and some five hours after he claims the parol agreement was made to employ him, is full and complete in its terms unambiguous, reasonable and plain; the plaintiff signed it knowingly and voluntarily. One of the instruments he carried with him back to Meridian, kept it in his possession till the next day, and then deposited it in a Meridian bank, and had the money, seven thousand dollars there placed to his credit.

The written instrument signed by plaintiff not a mere receipt for money but a formal release which can not be varied by parol. The voucher and release in evidence, signed by the plaintiff, are not a mere receipt for money which may be extended by parol, but it is a formal release, witnessing in plain and explicit terms the agreement on the part of the plaintiff, discharging the defendants from all liability for the injury received by the plaintiff, and are final and conclusive.

Consideration stated is contractual.--The appellant's contention is that it is always competent to show what is the true consideration of any agreement and that this may be shown by parol, but we submit that under the great weight of authority that this rule does not apply, when the consideration is contractual in its nature, as in this case.

Alleged parol promise not a collateral or distinct agreement.--It is not contended by the appellant that the parol promise upon which he sues is a collateral agreement merely; but that it was a part and parcel of the agreement entered into between himself and Mr. Curran, which was omitted from the written agreement thereafter executed in the matter, the exception therefore which applies to mere collateral agreement covered by some of the cases cited by counsel for appellant in his brief, does not apply as we have heretofore stated.

It does not matter whether this contract in this case is governed by the laws of Mississippi, where it was entered into, or the laws of Mississippi, where it was to be performed, because the laws of both states equally uphold the action of the court below in denying the plaintiff the right to vary the written contract in this case, by a contemporaneous parol agreement.

The only difference seems to be that the State of Louisiana has embodied the rule in a Statute which provides (C. C., article 2276):

"Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since."

And that parol evidence is not admissible in this case to contradict or vary the written statement or agreement of the plaintiff, is established by a long line of Louisiana decisions:

"Parol is inadmissible against or beyond what is mentioned in a written act, or as to what may have been said before or at the time of making it, or since. Hennen's Digest, XV (d) 1, p. 534; citing C. C. 2256, 1 N. S. 641; 3 N. S. 649; 16, La. 129; 18 La. 43; 18 L. A. 381, 4 Rob. 416; 1 Ann. 108; Morgan v. Morgan, 5 Ann. 230.

"Parol is inadmissible to contradict a written release." Lesseps v. Wicks, 12 Ann. 739.

"The unbending rule of our jurisprudence is that a party cannot vary or destroy his voluntary agreement by other than written evidence, which includes answers to interrogatories or facts and articles. Shreveport v. Davis Larosa, 18 Ann. 577.

"Parol is not admissible to change the terms of a written contract." Hunter Stewart v. Lewis Bros., 42 Ann. 37.

"Where a contract is plain and unambiguous parol evidence regarding the nature of the contract will not be admitted." Hyman v. Schlenker, 44 Ann. 109.

"A party having made a declaration in a written act, parol evidence is inadmissible to explain it." St. Landry Bank v. Meyers, 52 Ann. 1769.

"Unless error, fraud, or latent ambiguity be averred, parol testimony is inadmissible against or beyond what is recited in a written act, or as to what may have been said before or at the time of making it, or since. Application is made of the principle upon which rests the maxim 'expressio unius personae, vel rei, est exclusio ulterius.'"

What Law Governs.--The appellees do not agree with counsel for appellant that the question here involved is to be determined by the laws of the state of Louisiana.

The rule which we are invoking is...