Ezo v. St. Louis Smelting & Refining Co.

• Decision Date: 03 December 1935
• Docket Number: No. 23490.,23490.
• Citation: 87 S.W.2d 1051
• Court: Missouri Court of Appeals
• Parties: EZO v. ST. LOUIS SMELTING & REFINING CO.

87 S.W.2d 1051

EZO v. ST. LOUIS SMELTING & REFINING CO.

No. 23490.

St. Louis Court of Appeals. Missouri.

December 3, 1935.

Rehearing Denied December 17, 1935.

Appeal from St. Louis Circuit Court; M. G. Baron, Judge.

"Not to be published in State Reports."

Action by John Ezo against the St. Louis Smelting & Refining Company. The trial court directed a verdict for defendant, but thereafter granted plaintiff's motion for new trial, and defendant appeals.

Order granting new trial reversed and cause remanded with directions.

Boyle & Priest, George T. Priest, and Robert E. Moloney, all of St. Louis, for appellant.

John Grossman, of St. Louis, for respondent.

BENNICK, Commissioner.

On May 14, 1914, while in the employ of defendant, St. Louis Smelting & Refining Company, in its lead mines in St. Francois county, Mo., plaintiff, John Ezo, sustained a personal injury under such circumstances as to afford him a claim for damages based upon the idea of defendant's negligence. Thereafter, on July 3 1914, he executed his written release to defendant, the same reciting, among other things, that in consideration of the payment to plaintiff of the sum of $50, he released and discharged defendant from any and all liability to him on account of such injury. He thereupon was put back to work, and thenceforth continued in the employ either of defendant or else of the National Lead Company (about which there is some controversy), until in September, 1930, when, according to plaintiff's evidence, he was discharged and all his further connections with the company terminated.

In the present action, which is one at law, plaintiff counts upon an additional consideration given for the release though not expressed therein, namely, the promise of employment by defendant for the balance of plaintiff's natural life at the wages of laborers similarly employed; and he seeks in this action to recover from defendant the sums he would otherwise have earned at the prevailing wage scale from the time of his discharge up to the time of the trial.

In the course of his petition, in anticipation of a plea by defendant setting up the written release as a bar to the prosecution of the present action founded upon the alleged breach by defendant of a contemporaneous oral agreement not incorporated therein, plaintiff alleged that at the time of his execution of the release he could neither read nor write the English language; that the contents of the release were interpreted to him and translated by an agent and representative of defendant; that said agent and representative of defendant, in interpreting and translating said release from the English language to plaintiff's mother tongue, so read the release as to represent to plaintiff that the consideration of the promise of employment for plaintiff's natural life was included in and made a part of the same; that plaintiff at the time of his execution of the release did not know, nor until the latter part of 1930 did he learn, that the promise of employment had not been incorporated in the release; and that because of the false and fraudulent representation made to him by defendant that he would be given employment for the balance of his natural life, and in reliance thereon, he signed and executed the release.

For its answer defendant did plead the bar of the written release, coupled with a further plea that plaintiff's cause of action, if any, was barred by limitation of time, and that in any event his cause of action (in so far as it purported to be one for the reformation of a written instrument) was cognizable only in a court of equity.

The reply was a general denial of all new matter contained in the answer.

At the close of the whole case, the court peremptorily directed a verdict for defendant, but thereafter, upon plaintiff's motion, granted plaintiff a new trial upon each and every ground contained in the motion, thus raising the question, as a matter of law, of plaintiff's right, notwithstanding the execution of the written release, the full force and effect of which he admits and affirms in so far as it expresses the agreement entered into between him and defendant, to nevertheless prove and rely upon an alleged additional contemporaneous oral agreement relating to the subject-matter of the written release and purporting to have constituted part and parcel of the consideration for which the same was given, though not expressed therein.

The appeal, of course, is by defendant from the order of the court awarding plaintiff the new trial.

Simply stated, defendant's theory is that plaintiff's cause of action must fail because of the incompetency of oral testimony to vary or add to the consideration expressed in the written release, the consideration as expressed having been contractual; while plaintiff counters with the suggestion that the consideration as expressed in the instrument was not contractual, but constituted no more than a mere recital, so that any testimony tending to show an additional consideration for the release was properly admissible without doing violence to the parol evidence rule. Furthermore, plaintiff insists that in any event the evidence of defendant's promise to employ him was competent in the case in view of the issue of fraud raised in the petition regarding the procurement of plaintiff's signature to the release, the situation so created taking the case from within the application of the doctrine affording immunity to written instruments from parol attack.

It is to be observed that in the matter of the fundamentals of the case the parties are in practical accord upon the law to govern it, both sides conceding the rule that when the statement of the consideration in a contract or instrument of release is merely formal and is to be regarded as evincing no more than the mere recital of a fact, it may properly be contradicted or explained by parol evidence, but that when the statement of the...