Jessup v. Chicago & Northwestern Railway Co.

Kinne, J. I. This is the second appeal in this case. See 82 Iowa, 243 (48 N. W. Rep. 77). While the motions which were sustained by the district court embraced many distinct grounds, we think they may all be disposed of by the determination of one question, which is of controlling importance in the case. It is to be remembered that this is not an action to recover fora personal injury; nor is it an action to set aside a contract of settlement made, and to restore the plaintiff to his original rights, because of fraud practiced upon him, which induced a settlement; nor is it sought to reform the contract of settlement as not expressing the real agreement of the parties. It is an ordinary suit upon an alleged oral contract for damages, for a failure on thb part of the defendant to perform its alleged agreement. The alleged oral agreement is denied. Defendant pleads a written agreement of settlement. Plaintiff, in reply, deniés signing the paper, but pleads facts showing he did sign it by reason of fraudulent representations. On cross-examination plaintiff admits signing the agreement pleaded by the defendant. The written agreement, though pleaded by the defendant, and offered on the trial to the plaintiff, was not introduced in evidence. It will be seen that plaintiff is not attempting to show that the real consideration of the written contract is other or different from what is recited therein. He seeks to recover on an oral undertaking, pleaded as being separate and distinct; an undertaking which differs from the written contract only in that it 192 attempts, by ignoring the written contract, to ingraft upon it an additional provision touching the employment of plaintiff by the defendant. Having admitted, as we have stated, the execution of the written contract pleaded by the defendant, plaintiff ought to be concluded thereby until the same is set aside or reformed in a proper proceeding, so that it shall express the real intent of the parties, if it does not now do so. In other words, it is apparent that plaintiff’s remedy, if this written contract was procured by fraud, as he claims, is to proceed in a proper action to set it aside, thereby restoring to him his rights as they existed before it was entered into; or if the contract, by reason of mutual mistake, did not express the intent of the parties, then he should have proceeded to have had it reformed. He does neither, but, ignoring a written contract, which he admits he signed, he sues upon the oral agreements, which it is apparent led up to and became a part of the contract finally entered into by the parties, and which was in writing. In our judgment, this cannot be done. If it may be, then no reliance can ever be placed upon a written contract. Nor would it ever be necessary to set aside or to reform such a contract when it had been fraudulently obtained, or did not express the real intent of the parties. It appearing that these parties, after the alleged oral agreement, entered into a contract in writing touching the payment and satisfaction for the same injury which it is now claimed the oral contract sued upon related to, it must be held that the written contract embodies all of the obligation of the parties, so long as it stands, and is not reformed or set aside. Any testimony, therefore, which sought to vary or add to the written contract, was properly stricken out. Authorities need not be cited to support the proposition that a written contract cannot be changed or 193 altered by evidence of parol contemporaneous agreements. The case needs no further elaboration. When plaintiff admitted signing the written agreement pleaded, he could not proceed to ignore it, and recover upon an oral agreement which was contemporaneous with the written contract, and related to the same subject matter. Under the circumstances as they developed upon the trial, the district court properly directed a verdict for the defendant. We are not called^ upon to consider the defendant’s motion more fully upon the merits. — Affirmed.