Milich v. Armour Packing Co.

The opinion of the court was delivered by Johnston, J.: From the pleadings and plaintiff’s statement of the case it was made clearly to appear that all the negotiations of the parties preceded the signing of the agreement made between them, and that the only consideration for the same was the alleged liability of the defendant for the injury and death of plaintiff’s father. It is not claimed that fraud was used in inducing the settlement which was made or in procuring the execution of the agreement which was signed by both parties. The execution and validity of the agreement were in fact conceded, but it is insisted by plaintiff that it does not express all of the agreements of the parties, but that a part consideration for the release was the parol' promise of permanent employment, which was not embodied in the writing. The only question, therefore, presented for decision is whether the parol promise of employment, which it is alleged constituted a part of the consideration for the settlement and release, may be proved by parol. The general doctrine is that all oral negotiations are merged in the written agreement, and that the terms of such agreement cannot be contradicted, altered, added to or varied by parol evidence. Parties who reduce their agreements to writing and intend to [235] make the writings the only evidence of their agreements would have little protection against defective memories or the uncertainty of oral testimony if parol proof of provisions inconsistent with those embodied in the writings may be received. There are well-recognized exceptions to the rule excluding oral and extrinsic proof, as that a mere-receipt is subject to be explained, controlled or contradicted by parol testimony. And so it is with a formal recital in a deed of conveyance acknowledging the receipt of purchase-money. Such an acknowledgment, like an ordinary receipt, is subject to be explained, varied and contradicted by extrinsic testimony. Unilateral admissions of this character are not conclusive upon the parties making them, but' if a writing purporting to be a receipt is in fact a completed contract of the parties, parol evidence is inadmissible to vary or contradict its terms. (K. C. & O. Rld. Co. v. Hicks, 30 Kan 288, 1 Pac. 396; C. B. & Q. Rld. Co. v. Imhoff, 3 Elan. App. 765, 45 Pac. 627.) Where the consideration stated in a deed is mere recital and bears no evidence of having been made a matter of contract, parties are not estopped to show a different consideration ; but where it appears to be more than a mere recital and is in anywise contractual, parol evidence cannot be admitted, nor will it be received where it would operate to defeat or destroy the conveyance itself. (Miller v. Edgerton, 38 Kan. 36, 15 Pac. 894.) Where the written agreement is incomplete, and it is obvious that it does not embrace the entire agreement of the parties, oral testimony may be received to supplement and explain what is written. The writing in the present case does not fall within any of the exceptions. It was more than a mere recital or unilateral admission, as it was signed by both [236] the plaintiff and the defendant. The negotiations-proceeded for a considerable time, and culminated in the agreement, which upon its face appears to be complete and a final disposition of the claims and rights of the parties. It recites the death of plaintiff’s father, the claim that'it was due to the negligence of: the defendant, the desire of the parties to settle all claims of liability that might exist by reason of the death, refers to the next-of-kin who were entitled to claim damages if the death was due to negligence, and provides that the Armour Packing Company should pay to Peter on account of the claim the sum of $200 in cash. Por this amount of money he agreed to satisfy all claims of any and every kind arising out of or in anywise connected with any claim for the death of his father. More than that, he was required by the terms of the agreement to make diligent effort to obtain the release of his mother on or before a certain time for the sum of $300, and if it turned out that she was dead and there were no next-of-kin, and the plaintiff was the sole representative of his mother, the $300 should be paid to the plaintiff. The contract evidences the complete disposition of the plain tiff’s interest by reason of the death of his father and the complete settlement of his claims for such death. It is' evident that the amount to be paid by reason of the liability for 'the death of the father was the important feature of the agreement, and, .judging from the acts that were to be performed by both parties, it is clear that the consideration entered into the contract and is not merely matter of recital; on the other hand, it is expressly admitted that the only consideration for the written as well as the alleged oral agreement was the liability arising from the injury and237 death of the father. In the written agreement, however, which was executed, the plaintiff, besides stipulating to do other things, clearly and expressly released the defendant from that liability and for a specified sum of money. Nothing in the writing suggests that the amount of money was not the whole consideration, nor that the agreement was only a partial discharge of the liability. It would be difficult to suggest language more clearly indicating a purpose to discharge the defendant from all liability for the expressed consideration than was used in this writing. To permit the plaintiff to show the parol promise would be a material addition to a contract apparently complete in itself and one entirely inconsistent with its terms. In Cornell v. St. L. K. & A. Rly. Co., 25 Kan. 613, an agreement relinquishing a right of way to a railroad company for a specified consideration was made between the parties, but afterward the landowner claimed that an oral agreement had been made, and that as a further consideration for the relinquishment he was to have an annual pass during his life and a reduction of ten dollars from the regular rates for each car of freight which he might ship to St. Louis. It was held, however, that the agreement was the best possible evidence of the intent of the parties-, that it presumably embraced all the negotiations of the parties, and therefore that evidence of the parol agreement which would enlarge the written contract and materially vary its terms was not admissible. Jessup v. C. & N. W. Ry. Co., 99 Iowa, 189, 68 N. W. 673, is a pertinent authority in this case. The plaintiff was employed by the defendant, and while in the service was injured through the alleged negligence of the defendant. A written agreement was made by the terms of which the defendant was to pay the plaintiff [238] $400, certain board and doctor’s bills, and furnish him with an artificial limb, in consideration of which the plaintiff released the defendant from all liability for damages growing out of the injury. Afterward the plaintiff brought an action and undertook to prove as an additional consideration an alleged oral agreement for permanent employment, but the court ruled that the written contract should be deemed to express the real intent of the parties, and that evidence of the parol and contemporaneous agreement could not be received. Myron v. Union Railroad Co., 19 R. I. 125, 32 Atl. 165, involved the same question and was decided in the same way. The plaintiff, who was injured, agreed to release the defendant from all present or future liability for the injury in consideration of $900. In the face of the release, however, he afterward claimed that a part of the agreement was that the defendant should give him employment at certain wages so long as he should live and be willing to remain in the employ of the company. The court remarked that to allow him to prove the parol agreement ‘ ‘ would be to permit the plaintiff by oral testimony to add to the terms of a written instrument which is apparently complete in itself a matter concerning which the instrument is silent, and that, too, when in legal contemplation the release is to be regarded as the only evidence of the contract of the parties as finally concluded.” See, also, White v. Railroad, 110 N. C. 456, 15 S. E. 197; St. Louis & S. F. Ry. Co. v. Dearborn, 23 U. S. App. 66, 60 Fed. 880; Baum v. Lynn, 72 Miss. 932, 18 South. 428; Cummings v. Bears, 36 Minn. 350, 31 N. W. 449. The plaintiff strongly relies on The Pennsylvania Company v. Dolan, 6 Ind. App. 109, 32 N. E. 802, and Harrington v. K. C. Cable Ry. Co., 60 Mo. App. 228, [239] but the writings upon which the decisions are based in those cases are quite dissimilar from that in the case at bar, and neither of them, as will be seen, was decided by the courts of last resort; and even in those cases the exception to the rule is recognized, that where the parties have undertaken to specify the consideration in the writing, and such consideration is contractual in its nature, parol evidence of other or different considerations will not be admitted. The writing in the present case is so clearly contractual in character as hardly to admit of discussion, and under the authorities parol proof of other understandings than those embodied in the writing cannot be received. From the opening statement of counsel it is clear that the plaintiff is not entitled to recover upon either count of his petition, and therefore the judgment of the district court will be affirmed.