Matlock v. Gulf, C. & S. F. Ry. Co.

• On Motion for Rehearing.

In his motion for rehearing, appellant earnestly insists, among other things, that the rule that all previous negotiations are merged into the written contract which cannot be varied, changed, or contradicted by parol evidence, is not applicable in the instant case; but that the rule admitting parol testimony to show the whole consideration, where only part of such consideration is recited in writing and the remainder consists of an oral contemporaneous agreement, is applicable. That, in the instant case, in addition to the payment of the amount stated, there was the further consideration for the execution of said release that appellant was to have a lifetime employment by appellee. He cites particularly the case of Texas C. Ry. Co. v. Eldredge (Tex.Civ.App.) 155 S.W. 1010, as sustaining this contention. Such rule is well recognized, but not applicable in the instant case. Had no mention been made in the release of such future employment, appellant would, under his pleadings, have been entitled to testify as to what he contends was the full consideration for the execution of said release. But in the instant case the undisputed testimony shows that before he signed the release he sought positive assurance as to future employment. This, according to testimony of appellee’s witnesses, it declined to give him in writing. On the contrary, after such negotiations, when the release was prepared, there was embodied in it a provision expressly negativing in writing the very thing he now-insists was agreed to orally. Thus it became a part of the consideration to the¡ Railway Company in paying him the $2,500, and brought the settlement contract wherein the release was executed clearly within the rule excluding the testimony offered by appellant.. When Matlock, after seeking a future employment contract, signed the release expressly excluding any such agreement and was paid the money under it, absent any fraud, mistake, accident, or imposition by the Railway Company, he was clearly bound by it and cannot be heard to contradict it by parol.

Nor do we sustain the further contention made that the continued employment of appellant for a period of more than two yedrs after he signed such release was a recognition and performance in part of the lifetime employment contract which appellant contends was made. There was no evidence that appellant’s former employment with the Railway Company had ever terminated. He frequently laid off for differing periods of time because of his injury, but his continued employment was recognized by the Railway Company at all limes, and his services, after the execution of the release of the Company from damages, were continued as theretofore. This continuation of such services in his position as machinist at the same place and under the same wage scale was manifestly, and under the testimony, but a continuation of his old employment from which he had never been discharged; and not a new employment under a new contract.

The other contentions made have been disposed of in our original opinion. The motion is in all things overruled.

Overruled.