English v. New Orleans & North Eastern R. R.

Smith, J., delivered the opinion of the court. This was a suit for damages for an alleged breach by appellees of an alleged contract to give appellant employment on appellees’ roads. There was a verdict and judgment for appellees, from which this appeal is taken.. In July, 1907, appellant was employed by appellees as engineer on a- switch engine, and, while operating his engine in appellees’ yards at Meridian, was injured by reason of the negligence of other employees of appellees. On August 4, 1908, appellant and the president of appellee corporations met in the city of New Orleans, agreed upon a settlement of appellant’s claim fox damages, and, pursuant thereto, the following release was executed by appellant: “New Orleans, La., August 4, 1908. I, the undersigned, William H. English, do hereby acknowledge to have this day received from the New Orleans & Northeastern Eailroad Company, the Alabama & Vicksburg Eailway Company, and the Alabama Great Southern Eailroad Company, the sum of seven thousand dollars ($7,000), paid to me in full satisfaction and settlement of all claims of every kind whatsoever that- I have or may have against said companies, or either of them, because of the personal injury received by me in Meridian yards on ox about the twentieth (20th) day of July, 1907, hereby giving them full release, satisfaction, and guarantees of every kind whatsoever. Signed in triplicate this 4th day of August, 1908. [Signed] William H- English. Witness: [Signed] H. B. Sargent. [Signed] A. G. Tufts.” The seven thousand dollars was paid by check, containing in the body thereof a receipt from the appellant in the following language: “In full settlement of all claims of every kind that I have or may have against the New Orleans & Northeastern E. E. [581] Co., the Alabama & Vicksburg Ry. Co., and the Alabama Great Southern R. R. Co., for personal injury received by me in Meridian yards on or about July 20, 1907, as per release attached.” Appellant’s declaration alleged, and while on the witness stand he testified, that in addition to the seven thousand dollars appellees, as a part of the consideration for the release agreed to give him “his regular work as soon as he sufficiently recovered, and that, if he was un-. able to fill said position, that he, the said president and general manager, would procure employment for plaintiff in the railroad service at such work as the plaintiff was able to perform;” that he was now able to work, but that appellees declined to comply with their agreement to give him employment. This evidence was by the court excluded, and a peremptory instruction given to find for appellees. It is immaterial whether this is a Louisiana or Mississippi contract, for the matter now under consideration relates to a rule of evidence, and consequently the lex fori governs. 22 Am. & Eng. Enc. Law (2d Ed.), p. 1385, and authorities there cited. Appellant’s contention is that the consideration of the release is merely stated therein as a fact, is simply an acknowledgment of receipt, and, consequently, cán be varied by parol. This writing contains much more than a mere acknowledgment of the receipt of the consideration for the release, for it also contains a contract to receive the seven thousand dollars “in full satisfaction and settlement of all claims of every kind whatsoever thatl have or may have against said companies, or either of them, because of the personal injury received by me in Meridian yards on or about the twentieth (20th) day of July, 1907,” and it then proceeds to grant “full release, satisfaction,” etc. The stipulation in the writing is therefore contractual, and cannot be varied by parol.( Thompson v. Bryant, 75 Miss. 12, 21 South. 655; Baum v. Lynn, 72 Miss. 932, 18 South. 428, 30 L. R. A. 441; [582] Cocke v. Blackburn, 58 Miss. 537. It may be noted that this is not an effort to avoid the contract by reason of illegality or failure of consideration, but is simply an attempt to inject into the contract, and enforce, an agreement not contained in the writing, and necessarily excluded by its terms. We have carefully examined all of the authorities cited by counsel, but deem it unnecessary to refer to same, fox the reason that our own cases fully cover the rule invoked. Affirmed.