Jackson v. Chicago, St. Paul & Kansas City Railroad

54 Mo. App. 636, 1893 Mo. App. LEXIS 236

Opinion

Ellison, J.

— This action is for damages caused by the overflow of plaintiff’s lands. The cause of the overflow, as alleged, was the failure of defendant to dig and maintain a ditch on the west side of its railway through plaintiff’s lands as alleged it agreed to do as a part of the consideration- for a deed for right of way which plaintiff executed and delivered to it; such part of the consideration not being mentioned in the deed, and.not charged to have been omitted by fraud, accident or mistake. The consideration mentioned in the deed is two hundred and fifty dollars and that “the said railway company is to provide and maintain for the said grantors, one grade farm crossing, and also one underground cattle pass, and to haul and dump thereat all the stone desired by the said George W. Jackson to pave the approaches to said cattle pass, not exceeding four car loads. The grantors are to do the paving, railway company to haul said stone within six months after its railway is regularly running.” It was conceded that defendant had complied with the terms thus expressed in the deed and that unless plaintiff was permitted to prove the agreement to dig and maintain the ditch as additional consideration to that mentioned in the deed, he could not recover. Defendant’s counsel thereupon objected to the introduction of testimony, on the ground that the consideration, as thus expressed in the deed, was made a matter of contract complete on its face and could not be altered or added to, in the absence of accident, fraud or mistake. The court overruled the objection, and the trial having resulted in a verdict and judgment for plaintiff, defendant appealed to this court.

The question for decision is whether the consideration as it appears in this deed can be altered, added to, or varied. Ordinarily, the rule undoubtedly is that the consideration in a written instrument may be varied or added to by oral testimony not inconsistent with the terms of the instrument. But a proper disposition of the question here calls for an investigation of the reason for this rule.

It was once the view of the courts that the consideration in a deed could not be shown to be different in amount from that stated. This position was receded from. It was then held by many that while a different amount from that stated might be shown as the real consideration, yet the character of the consideration could not be shown to be different. This position was also overthrown; so that now it may be stated as the holding of nearly all the American courts, that not only the amount of the consideration may be questioned by oral testimony, but the parties are not estopped from showing the character of the consideration to be different from that stated. Hollocher v. Hollocher, 62 Mo. 267; Landman v. Ingram, 49 Mo. 212. As in the case of McCrea v. Piermont, 16 Wend. 460, where the consideration was money it was permitted to be shown to Rave been iron. I will remark, parenthetically, that I make no reference here to the fundamental divisions of ■consideration. As whether when one kind of consideration is stated, as for instance a valuable consideration you would be permitted to show a good consideration, •as natural love and affection.

The reason assigned by these adjudications was •that the consideration in a deed is to be regarded as merely recital and forming no part of the contract. Its binding force upon the grantor is by way of estoppel •only that he may not prevent the operation of the deed •as' a conveyance of the property. As was said by •Collameb, J., in Beach v. Packard, 10 Vermont 96, he must abide by his deed though he never actually receives ‘the consideration. A statement of consideration is not a necessary requisite to the validity of a deed. If it •omits to state a consideration it is not evidence that none passed; and does not prevent testimony showing that there was a consideration and, if necessary, what it was. The statement of the amount of the consideration in a deed and the acknowledgment of its payment is no more than a receipt. It is but the statement of a fact, which as before said, is not necessary to the •operative effect or validity of the deed as a conveyance of the title. And like a receipt is prima fade evidence of what it states, but by no means conclusive; except that there was some consideration. Gulley v. Grubbs, 1 Marsh. J. J., 387; McCrea v. Piermont, supra; 1 Herman on Estoppel, 761.

It .works no estoppel as to amount or character, for, .as before stated, it is mere recital and is not intended to be contractual, or to be relied upon as between the parties. And the same principle applies to ordinary written contracts. Bishop on Contracts, sec. 75. In ■order that estoppel may be applied to a recital “it must be shown that the object of the parties was to make the matter recited a fixed fact, as. the basis of their action.” Hays v. Askew, 6 Jones (N. C.) 63; Bigelow on Estoppel, 382, 383. An intention should appear that, the statement was not to be questioned. Bigelow on Estoppel, 382,

This then being the reason of the rule, can it be-successfully maintained that the parties, if they so will and intend, cannot make the consideration a part of the-contract and affect it with special terms, details and conditions so as to bind the parties within the rules, of evidence applicable to contracts generally? I think it cannot be so maintained. All written contracts, complete and definite, speak for themselves and they cannot be altered, added to or subtracted from by oral testimony. This is an absolute rule of evidence adopted from motives of policy,and founded upon the experience of mankind in dealing with the “slippery memory” of' men. So that it must follow that if parties express, their contracts, as to the consideration, in terms which show that it is a contract, then, if complete upon its face, it can no more be altered or varied than any other-contract. Whenever the statement of the consideration leaves the field of mere recital and enters into that, of contract, as shown by the intention of the parties to be gathered from the instrument, it is no longer open to contradiction. This may be illustrated: Suppose the consideration in a deed should be: “In consideration of the sum of one thousand dollars to be paid to me in beef cattle weighing not less than one thousand two hundred pounds each, at five cents per pound.” Would it be contended that a consideration thus expressed contractually could be orally shown to be other than as expressed? So in the case of McCrea v. Piermont, supra, where, though the consideration was expressed to be in money, it was held that it could be shown to be iron of certain quality; if the fact had been the reverse of this and the consideration had been stated to be of a certain quality and quantity of iron, would it have been competent to show, in contradiction of this, that it was to be a given sum of money? I think not. Eor the reason that the mere statement of a certain amount of money, without more, as the consideration, is inattentive recital, common in conveyancing, of a consideration in most general use. It is thus spoken of in the books and adjudications. 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 inserted, thereby evidencing a contractual intention, it is as binding as any other contract.

But money may also be contracted for as the consideration in a written contract. And when the intention to so contract is disclosed by the written instrument, no other or additional consideration can be shown. Thus, suppose that the consideration was stated in the written contract to be “one thousand dollars to be paid as follows: Two hundred dollars in six months from date without interest; four hundred dollars in twelve months from date with three per cent, interest; and four hundred dollars in eighteen months from date with ten per cent, interest from maturity; all to be secured by a mortgage” on certain described property. Could it be shown in contradiction to this that the consideration agreed upon was fifty head of cattle or an additional sum of money? Clearly not. The reason is that it has been contracted otherwise by the parties and that contract has been reduced to writing. Bigelow in his work on Estoppel 471, says (italics mine) that “'parties may by apt terms of contract bind themselves not to question an acknowledgment of receipt of money. * * * And that an acknowledgment of receipt of money or commodities, not clearly agreed in the writing to be binding as a contract, or as the basis of a contract, is not generally conclusive evidence between the parties of the facts stated, is well settled.” If the rule of law wa& not as I-have herein endeavored to show it to be, one would be utterly unable to protect himself against faulty memory, misunderstanding, or intentional perjury.

What I have said is amply supported by standard authority. Thus it is said that “Where the recital involves a contract, it estops; if it does not involve a contract, it operates only as a unilateral general admission, and is open to explanation.” 2 Wharton Ev., see. 1040. Again that author says, in-speaking of the right to vary a written document by parol evidence, that the question depends upon whether the terms therein are uttered dispositively, i. e., for the purpose of disposing of rights, or non-dispositively, not for the purpose of disposing of rights. In the former case, “new ingredients cannot be by parol added to such documents.” Sec. 920, 921. So in Puriton v. Railroad, 46 Ill. 297, where the right of way for a railroad company was contracted for by an instrument reciting, “that in consideration of the company having undertaken to build their road, and in consideration of one dollar, and building a side-track on some portion of the tract,” the land owner was to convey the right of way. It was held that parol evidence was not admissible to add to this consideration the further stipulation that the company should fill up a sluice on the land west of the line of road.

It is clear that the deed in this case shows a contract between the parties as to the consideration, and that therefore, in keeping with the foregoing views, such consideration cannot be varied, altered, or added to by oral testimony. Defendant’s objection should have been sustained. The judgment is reversed.

All concur.