Tate v. Wabash Railroad, Co.

• Decision Date: 04 May 1908
• Citation: 110 S.W. 622,131 Mo.App. 107
• Parties: ELLA TATE, Appellant, v. WABASH RAILROAD, COMPANY, Respondent
• Court: Kansas Court of Appeals

110 S.W. 622

131 Mo.App. 107

ELLA TATE, Appellant, v. WABASH RAILROAD, COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

May 4, 1908

Appeal from Macon Circuit Court.--Hon. Nat. M. Shelton, Judge.

AFFIRMED.

Judgment affirmed.

John T Barker for appellant.

(1) The release pleaded by respondent is not conclusive of appellant's rights, the consideration therein recited is subject to explanation by parol testimony. Harrington v Railroad, 60 Mo.App. 223; Stewart v. Railroad, 141 Ind. 55, 40 N.E. 67; Dolan v. Penn Co., 6 Ind.App. 109, 32 N.E. 802; Smith v. Railroad (Tex.), 82 S.W. 788; Heath v. Railroad, 29 Ind.App. 401; Hobbs v. Electric Co., 75 Mich. 550; Houlihan v Railroad (Ind.), 54 L. R. A. 787; Windsor v. Railroad (Wash.), 79 P. 613; Fire Assn. v. Wickham, 141 U.S. 564; Ireland v. Spickard, 95 Mo.App. 53; Bales v. Church, 124 Mo.App. 22; Winter v. Railroad, 160 Mo. 183; Sawyer v. Walker, 204 Mo. 159; Davis v. Gann, 63 Mo.App. 425. (2) An additional consideration than that recited in a deed may always be shown by parol testimony. Bales v. Church, 124 Mo.App. 22; Bank v. Admr., 80 Mo. 199; Edward v. Latimer, 183 Mo. 626; Langan v. Iverson, 80 N.W. 1051; Windsor v. Railroad, 79 P. 613; Applegate v. Kilgore, 91 S.W. 238; Newenberger v. Lehenbauer (Ky.), 66 S.W. 15; Lowry v. Downey, 150 Ind. 364. (3) Where the recited consideration in a contract is money, then parol testimony is always admissible to show an additional or other consideration. Anderman v. Meier, 91 Minn. 413, 98 N.W. 327; Walter v. Dearing (Tex.), 65 S.W. 380; Womack v. Wamble, 7 Tex. Civ. App. 273; 27 S.W. 154; Pickett v. Green, 120 Ind. 584. (4) The release attached to the answer, not having been offered in evidence, was not before the court. An exhibit must be put in evidence. State to use v. Crum, 157 Mo. 545; Cement Co. v. Wind, 86 Mo.App. 163.

J. L. Minnis and Guthrie & Franklin for respondent.

(1) The release pleaded in defendant's answer is contractual, both in letter and spirit, purporting to be a full and complete adjustment of the right of respective parties thereto, and cannot be changed or modified by parol testimony. Jackson v. Railroad, 54 Mo.App. 636. The decision of this court in the above case seems to be controlling on the question. Davis v. Gahn, 63 Mo.App. 425; Melvill v. Hughes, 104 Mo.App. 455; Harrington v. Railroad, 60 Mo.App. 223; See v. Malone, 107 Mo.App. 721; Culbertson v. Young, 86 Mo.App. 277. (2) The contract of release pleaded in defendant's answer, is binding and conclusive, of the rights of the parties hereto and a bar to further legal action, until set aside for fraud, accident or mistake. R. S. 1899, ch. 8, sec. 654; Rowland v. Railroad, 124 Mo.App. 605; State ex rel. v. Stuart, 102 Mo.App. 26; Edward v. Latimer, 183 Mo. 610; Wojtylak v. Coal Co., 188 Mo. 260; Jackson v. Railroad, 54 Mo.App. 636; Davis v. Gahn, 63 Mo.App. 425.

JOHNSON J. ELLISON, J., concurring.

OPINION

JOHNSON, J.

--Plaintiff alleges in her petition that on September 6, 1904, she was injured while a passenger on one of defendant's trains, by the derailment of the coach in which she was riding; that in October, afterward, she entered into a contract with defendant by the terms of which, in part consideration for and release and satisfaction of her claim for damages, defendant agreed to provide her and her family, during her natural life, with free transportation over its railroad system; that defendant did furnish such transportation until July, 1907, when it notified plaintiff of its intention not to comply with the agreement in the future and that it thereafter refused the request of plaintiff for such free transportation. The amount of the damage sustained in consequence of the discontinuance of the service is placed at four thousand dollars, for which sum judgment is prayed.

The answer pleads a written contract of settlement duly executed by plaintiff which by its terms provided for the full satisfaction of the plaintiff's demand on the sole consideration of the payment of $ 5,800 in money. The reply is a general denial. At the trial, defendant objected to the introduction of any evidence on the grounds (1) that the petition does not state a cause of action and (2) because the pleadings show an absolute and conclusive adjustment and final settlement of the matter in dispute between the plaintiff and defendant; that the answer and release pleaded is a valid, binding and complete release and satisfaction of the entire matter in dispute or involved in this suit, and that the release and answer is traversed by no competent reply. The objection was sustained. Plaintiff took a nonsuit with leave to move to set the same aside and in due course of procedure brought the case here by appeal.

We think the effect of plaintiff's failure to deny under oath in her reply the execution of the written contract pleaded in the answer was to admit the execution of that instrument. The contract is attached to the answer as an exhibit and, while it is true, as plaintiff contends, that an exhibit attached to a pleading is no part of the pleading, and, until introduced in evidence should not be considered as being before the court, still we find that all of the contractual elements embodied in the instrument are sufficiently stated in the answer for us to refer, as a matter of convenience, to the instrument itself for a clear and concise statement of its terms. The contract is as follows:

"I hereby agree to accept, and do accept, of the Wabash Railroad Company, the sum of five thousand eight hundred dollars, as evidenced by my signature to the receipt annexed, in full satisfaction, release and discharge of all claims for damages that I now have, or may hereafter have against said company on account of personal injuries received by me in wreck of train No. 20, near Warrenton, Mo., also loss of time for services, etc., on the lines of the Wabash railroad, on or about the 6th day of September, A. D. 1904, and also in full of all claims whatsoever for loss or damage to personal property in consequence of said accident. And it is further expressly agreed that in case suit has been instituted for said claim said suit shall be dismissed at the cost of No Suit and said company forever discharged from all liability growing out of said injuries.

$ 5,800.00

"Received Jan. 5, 1905, from the Wabash Railroad Company, the sum of five thousand eight hundred dollars, in full for the above settlement as per agreement recited.

ELLA TATE, (Seal).

J. T. TATE, (Seal)."

The object of the action is not to set aside the contract of settlement on account of duress, fraud or mistake, but to enforce a parol agreement alleged to have been made contemporaneously with the agreement reduced to writing and signed by the plaintiff. It is the contention of plaintiff that by the terms of the actual contract she made with defendant, she was to receive $ 5,800 in cash and the transportation in controversy and that, since the only consideration expressed in the written contract is a sum of money, the provision for its payment should not be considered as contractual and, therefore, that the real consideration may be proved by parol and that the part of it which rests solely on the oral agreement will support a cause of action in her favor.

Where the statement of the consideration appears in a written deed or contract as a mere recital of a fact, it is open to explanation by parol evidence, but where the language employed in the written instrument bespeaks the intention of the parties to treat the consideration as a contractual subject, the party afterward complaining no more is entitled to alter or vary such stipulation by parol evidence than he would be to change any of the other essential elements of the contract. It matters not that the expressed consideration be money or some other species of property, the real intention of the parties to be collected from the four corners of the written contract is the test to be applied. The mere recital in the instrument of the amount of the money consideration or an acknowledgment of the receipt of the money does not, of itself, evidence an intention to treat the amount of the consideration as one of the binding stipulations of the contract, but where, in addition to such recital or acknowledgment, terms are inserted which show a purpose to dispose, in the instrument, of the question of the amount and nature of the consideration, the subject must be held to have been regarded by the parties themselves as contractual.

In Jackson v. Railroad, 54 Mo.App. 636, we said: "But when this common form of expression thus reciting a sum of money, the medium of exchange which is generally used as the consideration, is departed from and an unusual provision is inserted, thereby evidencing a contractual intention, it is as binding as any other contract." And, by way of illustration, we further said: "Thus, suppose that the...