Stewart v. Chicago & Eastern Illinois Railroad & Chicago & Indiana Coal Railway Company

• Decision Date: 02 April 1895
• Docket Number: 17,186
• Parties: Stewart v. The Chicago and Eastern Illinois Railroad and the Chicago and Indiana Coal Railway Company
• Court: Indiana Supreme Court

40 N.E. 67

141 Ind. 55

Stewart v. The Chicago and Eastern Illinois Railroad and the Chicago and Indiana Coal Railway Company

No. 17,186

Supreme Court of Indiana

April 2, 1895

From the Clay Circuit Court.

The judgment of the circuit court is reversed, with instructions to overrule the appellees' demurrer to the second and third of appellant's replies.

E. S Holliday, G. A. Byrd and S.D. Coffey, for appellant.

G. A Knight, W. H. Lyford and W. J. Calhoun, for appellees.

OPINION

Hackney, J.

The appellant sought damages for personal injuries. To the complaint the appellees answered that for a consideration stated the appellant had released and discharged the appellees from all liability on account of the injuries complained of, and to this answer the appellant replied in two paragraphs, to each of which the lower court sustained the appellee's demurrer for insufficient facts. That ruling is the only alleged error presented by the record and argument.

The release and discharge so pleaded was as follows: "Know all men by these presents, that I, for and in consideration of the sum of thirty-one and 50/100 dollars, to me paid by the Chicago and Eastern Illinois Railroad Company, the receipt whereof is hereby acknowledged, do hereby release and forever discharge the Chicago and Eastern Illinois Railroad Company from any and all liability for, or from payment of any further sum or sums of money for and on account of the claim I have or may have against said company being as follows: 1891. For injuries sustained Thursday, May 28th about 2:30 P. M., while in the service of the C. & E. I. R. R. Co. as car repairer at Brazil, Ind., by car slipping off jack and catching my left arm between body of car and truck of same, mashing that member so badly that amputation above the elbow was necessary. Half time from June 1st to July 19th, 210 hours, at 15 cents, $ 31.50. And I do hereby agree that this release shall operate as a perpetual bar to any suit at law or otherwise which I or any of my heirs, executors, administrators or personal representatives may or can sustain by reason of the claim aforesaid.

"Witness my hand and seal this 15th day of August, 1891.

H. B. Stewart.

"C. L. Hinkle, "W. B. McPhail,

Witnesses."

The second paragraph of reply alleged that the release was executed without consideration, and the third paragraph alleged that the $ 31.50, stated in the release, was a voluntary allowance by the appellee as for half pay for 210 hours of service, and was allowed and delivered to the appellant in July, 1891; that when he received the same he executed a receipt for the same; that in August, 1891, one McPhail, yard foreman for the appellee, the officer under whom the appellant had been serving, and a man in whom he had implicit confidence, stated to the appellant that the receipt formerly signed had been signed in the wrong place, and that it would be necessary to sign another merely to serve as voucher for the money so received; that the appellant was fifty-eight years old and his eye-sight was so defective that he could not read writing without glasses, and had no glasses with him at that time; that McPhail produced a paper which he falsely and fraudulently stated was such voucher, and the appellant thereupon signed the same without the payment or promise of any sum or thing of value; that the appellant did not and, for the reason stated, could not read the instrument, but trusted the statement of said McPhail as to the nature and character of the same, all without knowledge of its true character.

It is further alleged that the appellant did not learn the contents of said instrument for several months after he so signed the same, and when he did so learn, he repudiated and disavowed the relinquishment therein stated.

It is conceded that the third paragraph, omitting the allegations of fraud, is but a special plea that the release was executed without consideration and that, as such, it must be tested by the same rules that are applicable to the second paragraph.

The appellant insists that the consideration, stated upon the face of the instrument, may be attacked by parol evidence, while the appellee as earnestly insists that it may not be so attacked because the consideration so stated is contractual and is protected from attack by the rule that parol evidence can not be heard to contradict, vary or amend the terms of a written contract complete upon its face.

To the contention of the appellant, are cited cases holding that as a general rule the consideration expressed in written contracts may be explained, varied and contradicted. See Levering v. Shockey, 100 Ind. 558; McMahan v. Stewart, 23 Ind. 590; Thompson v. Thompson, 9 Ind. 323; Rockhill v. Spraggs, 9 Ind. 30; Everhart v. Puckett, 73 Ind. 409; Smith v. Boruff, 75 Ind. 412; City v. Cobb, 21 Ind. 492.

Treating the instrument pleaded in bar of the cause of action as a receipt, the appellant urges the rule that receipts may be varied by parol evidence. See Markel's Admr. v. Spitler's Admr., 28 Ind. 448; Beedle v. State, ex rel., 62 Ind. 26; Stewart v. Armel, 62 Ind. 593; Lapping v. Duffy, 65 Ind. 229; Lash v. Rendell, 72 Ind. 475.

We will consider the instrument as a contract, not doubting that such is its effect. Alcorn v. Morgan, 77 Ind. 184; Munson v. Wray, 7 Blackf. 403.

None of the general rules suggested are denied, but all are conceded by the parties and the issue is narrowed to the correct application of these rules. If the consideration, as stated in the instrument in review, is contractual the appellee's view of the case and the ruling of the circuit court must be affirmed, if not the judgment must be...