Evidence, Extrinsic affecting writings. Agency, Existence of relation. At the trial of an action for breach of an alleged oral agreement by the defendant, made in consideration of the release of him by the plaintiff from liability for injuries received by the plaintiff while in his employ, that he would pay the expenses of medical attendance upon the plaintiff and after his recovery again employ him as before, it appeared that an agent of an insurance company with whom the defendant was insured against loss by reason of injuries to persons in his employ, after interviewing the defendant, called upon the plaintiff, had a conversation with him, gave him a draft for $50 and received from him a release of the defendant in writing in duplicate, stated to be "for the sole consideration of $50 and doctor's bill not exceeding $25," in which there was no mention of other expenses for medical attendance or of any agreement for future employment. One copy of the release was retained by the insurance company, and the other was delivered to the defendant. The plaintiff sought to establish the oral agreement relied on by introducing in evidence, both in his own testimony and in that of the agent, the conversation that occurred between him and the agent of the insurance company before the release was signed. The plaintiff did not rely on or offer to prove any fraud in the procuring of the release by the agent. The conversation was excluded. Held, that the conversation properly was excluded because it would have tended to vary or contradict the instrument in writing; and, also, that it was doubtful whether there was any evidence that would warrant a finding that the agent of the insurance company was an agent of the defendant.
MORTON, J.
We think that the rulings were right. The evidence which was offered tended to vary or contradict the written agreement, and was, therefore, rightly excluded. The release stated that the considerations recited were the "sole consideration." Evidence of a consideration in addition to those contained in the release would have tended directly to contradict the express written agreement that the considerations named were the "sole consideration." The cases on which the plaintiff relies, as deciding that an additional consideration or a separate and independent agreement supported by the same consideration as the written contract may be shown, do not apply. In those cases the contract did not appear to have been intended, as this was, as a complete statement of the whole agreement.
It also may well be doubted whether there was any evidence warranting a finding that Pierce was the agent of the defendant. But it is not necessary to pass upon that question.
Exceptions overruled.