Koffman v. Southwest Missouri Electric Railway Co.

GOODE, J. The two assignments of error on account of the circuit court’s action in striking out those allegations of the replication which stated facts' in avoidance of the written contract and in excluding the testimony offered in support of said allegations, involve the same question and may be considered together. Indeed, the rejected portion of the replication and the rejected proof supplement each other in elucidating the theory on which the appellant demanded a recovery. He sought to get around the effect of the written contract by showing he signed it under a mistake as to its. contents, produced by misrepresentations made to him by the agénts of the railway company when hejwas too weak to read, with the dishonest intention of inveigling him into affixing his name to terms different from those previously agreed to verbally by him and said agents. The purport of the agreement to which he assented was, he says, that the railway company — 471 — would furnish a surgeon to treat and cure respondent so he would be well and sound. Instead of that agreement, the one signed merely bound the company to pay his expenses, doctor and board bills until he was able to go home and to furnish him transportation to his home. It is contended here, as it was in the circuit court, that the appellant was entitled to maintain this action on an agreement verbally made between himself and the company’s agents, notwithstanding he signed the instrument pleaded in bar, and to avoid that defense by showing his signature was fraudulently procured. In their cognizance of actions and defenses involving fraud, courts of law often override a document purporting to be a contract, on proof that its execution was induced by some trick or deceit which misled tho complaining party in regard to its terms, so that he did not know the legal effect of what he was signing; but do not, on such proof give effect to the agreement as orally made, or in other words, reform the instrument, as courts of equity do. When a written agreement is disregarded and held for naught in legal actions, that course is taken on the theory that it was executed under a misapprehension created by the party claiming the benefit of it, and that it purports to be an agreement which in point of fact was not made, since the minds of the parties never met, one of them believing he was subscribing a document of a different tenor from the one actually subscribed, which is therefore void or voidable at the deceived party’s instance. It is very common for defenses on this ground to be tolerated in actions at law arising out of contracts; as for instance, that a note or bill of exchange was fraudulently procured. Hahn v. Bradley, 92 Mo. App. (St. L. 399; Foster v. Mackinnon, 4 L. R. C. P. 704; Whitney v. Snyder, 2 Lansing (N. Y.) 477; Van Valkenburg v. Rouk, 12 Johns. 337. — 472 — It must be borne in mind, in considering this subject, that the common law adheres more rigidly to the rule against varying or contradicting written instruments by parol evidence than does equity. That rule was originally a part of the common-law procedure and not of equity, and exceptions are admitted in equity practice which the law will not admit. ^The reception, of parol testimony to show a party’s disability to contract, or that he was led to sign a document by circumvention or trickery, is not thought to infringe the rule, because the effect of siich testimony is not to vary or contradict the writing, but merely to show the subscribing party never assented to its terms. Or, when the writing is a receipt or other memorandum showing on its face it was not intended to be a complete expression of the agreement between the parties, the rule is not violated by admitting oral testimony to show the full terms of the agreement. ':%ut where the instrument. contains a complete contract, not suggestive of any omitted terms, it can not be altered, contradicted or new stipulations engrafted on it in an action at law, even though there was another term agreed on by the parties as a part of the contract but not carried into the instrument, as was ruled in Tracy v. Union Iron Works, 104 Mo. 193, in which the doctrine was learnedly discussed. It often occurs that acquittances such as we iind in this case are held void, when set 'up as defenses, on testimony showing they were fraudulently obtained, and judgment entered for the plaintiffs on the cause of action attempted to be released. Vautrain v. Railroad Co., 8 Mo. App. (St. L.) 539; 78 Mo. 144; Girard v. Car Wheel Co., 123 Mo. 358; Och. v. Railroad Co., 130 Mo. 27; Hancock v. Blackwell,, 139 Mo. 440; 150 Mo. 245; Chicago, Rock Island & Pac. R. R. Co. v. Lewis, 109 Ill. 120; Ryan v. Cross, 68 Md. 377; Sobieski v. Railroad Co., 41 Minn. 165; Butler v. Railroad Co., 88 — 473 — Ga. 594; Smith v. Steamship Co., 99 Cal. 462; Shaw v. Weber, 79 Hun (N. Y.) 307; Cleary v. Electric Light Co., 47 N. Y. St. Rep. 172, 139 N. Y. 643; Mullen v. Old Colony R. R. Co., 127 Mass. 86; Bliss v. Railroad Co., 160 Mass. 447; Union Pacific R. R. Co. v. Harris, 158 U. S. 326. But this practice by no means allows a party to recover in a legal action un a verbal contract relative to the same subject-matter contained in a written one signed by him, on proving he was misled about the contents of the latter. The contention of the appellant is that his case falls within the purview of the rule followed in the foregoing authorities, and that he had the right to introduce evidence for the consideration of the jury to show what the actual agreement made between him and the company’s agents was; that the document he signed does not express that agreement and that he was induced to sign it by its contents being erroneously stated to him when he was unable to take care of his interests. Neither in the above cases nor in any other that has been cited, was such a practice permitted or approved; for we carefully examined all to which our attention was called in thes. appellant’s brief, and they fail to support his position. As has been /said in numberless decisions, whatever discussions or negotiations took place between the parties in the verbal treaty looking to an agreement, are conclusively presumed to have been fully expressed in the written instrument as they were assented to by both, parties, when either asserts the contract and counts on a violation of it for a cause of action, as Koffman does. Crim v. Crim, 162 Mo. 544. The foundation of this action is the defendant’s alleged failure to perform a duty, to-wit: furnish pi aim tiff skillful surgery — a duty that never existed until it was created bj^ a contract in which the defendant assumed it. No obligation bound the company to fur — 474 — nish plaintiff surgical treatment, skillful or otherwise,, independent of an agreement' to that effect. This proposition is conceded, as is the fact that the written memorandum signed by Koffman did not impose on the defendant any obligation except to pay his doctor-bill. So, to make out a case, plaintiff sought to prove a verbal agreement by the company to furnish the services of a surgeon who would properly treat him, which would have been proving a stipulation or term not expressed in the instrument and different from any that is expressed in it. The evidence offered was obnoxious to -the rule against parol testimony to vary writings. '■sj But is claimed the excluded evidence tended to show fraud in the execution of the instrument, as indeed it did, and that therefore it was competent. The plea of non est factum at common law, by which the extent of the legal remedy against written instruments obtained by fraud is to be measured, let in oral testimony to avoid the instrument by showing-it was not in any true sense executed by one of the parties, but did not permit a defrauded party to set up a verbal contract as the one actually made, in lieu of the one contained in the avoided writing, and recover for a breach of it. If it is asked why a person should be allowed to defend against a written agreement fraudulently procured, or to overcome it when interposed as an accord and satisfaction to a previous cause of action unconnected with it or the negotiations-leading to its execution, and not allowed to ignore a complete memorandum when he sues on the agreement which it ought to have but did not express, the answer must be that it is, and for centuries has been the policy of the law to exclude parol evidence to establish agreements in order to make them the basis of a legal action when the parties have signed a writing for the purpose of setting out their agreement. It may be as logical to475 admit parol proof in one case as in the other, bnt this positive rule of law intervenes in one case and not in the other, and legal rules and precedents are not always uncompromisingly logical; for they are drawn from diverse sources and often devised to meet immediate needs in the dispensation of justice rather than to round-out a system. When a suit is to be brought on an agreement as made, but not written, the writing must be rectified by a proceeding in equity, and the reason of this procedure is that equity long since began to grant relief in such cases because the law granted none. The rule of equity jurisprudence on this subject is well stated by an able commentator: ' “Parol evidence may, in proper modes and within proper limits, be admitted to vary written instruments, upon the ground of mistake, fraud, surprise and accident. This exception rests upon the highest motives-of policy and expediency; for otherwise, an injured party would generally be without remedy.” Further discussing the same topic, the author says: “Reformation is appropriate, when an agreement, has been made, or a transaction has been entered into or determined upon, as intended by all the parties-interested, but in reducing such agreement or transaction to writing, either through a mistake common to> both parties or through the mistake of the plaintiff accompanied by the fraudulent knowledge and procurement of the defendant, the written instrument fails to-express the real agreement or transaction. In such a case the instrument may be corrected so that it shall truly represent the agreement or transaction actually made or determined upon, according to the real purpose and intention of the parties.” 2 Pomeroy’s Equity Jurisprudence, sec. 870. See also Kerr on Fraud and Mistake (Am. Ed.), p. 409, et seq; Browne on Parol Evidence, sec. 43, and — 476 — cases cited; Kilmer v. Smith, 77 N. Y. 266; Dameron v. Jamison, 4 Mo. App. (St. L.) 299. Appellant relies on the decisions above cited from onr Supreme Court, holding that where a compromise settlement is pleaded in bar of an action for damages against a tortfeasor, the plaintiff may show the acquittance was fraudulently obtained. But this action is not founded on the injury alleged to have been inflicted by respondent’s negligence in handling its car, and therefore said decisions are not in point, nor is the recently-enacted statute on the subject. R. S. 1899, sec. 654. Appellant could only recover on the alleged verbal agreement in regard' to the treatment of his injury, by reforming or setting aside the written instrument, as the learned circuit judge ruled. The jurisdiction to do so belongs exclusively to courts of equity and can not be remitted to. the determination of a jury in an action at law. Another point for reversal is made, on the ground that as there was evidence to show the railway company actually furnished a physician to Koffman who treated him. carelessly, he was entitled to go to the jury on the implied undertaking of the company to furnish proper and skillful treatment. But that point is certainly untenable on this appeal; for the appellant took a nonsuit when the court excluded evidence to contradict the written instrument. If there was other evidence which should have been submitted, by the court, then the nonsuit was that far voluntary; in truth, we have been skeptical about whether the nonsuit ought not to be treated as voluntary and neither point considered. But, unquestionably, appellant had no right to abandon his case at the stage he did, if, as is now urged, he had introduced evidence that made out a case for damages on an implied contract for careful — 477 — surgery to be raised from the circumstance that the respondent furnished him the surgeon. From the foregoing considerations it results that the rulings of the court below were correct and its judgment is affirmed. Bland, P. J., and Barclay, J., concur.