Bartley v. Phillips, 179 Pa. 175

179 Pa. 175 | Pa. | 1897

Opinion by

Me. Justice Mitchell,

It was decided when this case was here before, 165 Pa. 325, that evidence to show the agreement between Hartzell and the plaintiffs as to what should constitute due diligence or abandonment, was admissible, not being an attempt to alter or modify the written agreement, but to define terms used therein. The effect of sueh an agreement as to parties subsequently ■acquiring title from Hartzell without notice, was not decided, ■as the evidence did not then show that any such party was before us. Now however the appellant has shown title subsequently acquired from Hartzell, and his main contention is that he was not put on inquiry, or bound by anything not contained in the written, lease, and that the admission of evidence of a parol agreement between the parties to the lease would be as to him an alteration of the writing without notice.

This contention cannot be sustained. Appellant or his agent it is admitted had notice in fact of the lease. By it he was informed of an outstanding term in plaintiffs, for ten years, only three of which had expired. Whether the lease had terminated sooner by abandonment or forfeiture was a fact in pais which could not he known from the lease, but only from evidence dehors. As to such fact, he was put on inquiry, and the only safe source of information was the lessees. He not only did not inquire of them, but Hartzell’s deed gave him notice that the lessor refused to say there was a forfeiture. Under these circumstances he took the risk whether there had been an abandonment or not, and the jury have found the fact against him. This court has firmly established in a line of decisions from Wills v. Gas Co., 130 Pa. 222 to Cochran v. Pew, 159 Pa. 184, notwithstanding a most determined and persistent struggle of parties for a different rule, that the clause of forfeiture or termination of the estate is for the benefit of the lessor, and that as against him no act of the lessee can produce that result without his concurrence. Parties therefore who lease or buy, with a term apparently outstanding, without inquiry of the lessee and without the exercise of the lessor’s power to forfeit, take the risk of the fact as it may be found by the jury. In this case as already said no inquiry was made of the lessees, the lessor in his deed to Ziegler refused to assert a forfeiture, and the jury have found that there was no ground of forfeiture if the lessor had attempted one.

The case of Venture Oil Co. v. Fretts, 152 Pa. 451, is relied upon by appellant, but there is nothing in it inconsistent with the present view. There the lessor after an apparent abandonment by the lessee had made a new lease to other parties, and this court held that to be an exercise of his' right to forfeit for abandonment. In the present case as already said the lessor made a deed for the fee in the land, but excepted out of the warranty the rights of plaintiffs under the lease.

It is further assigned for error that the court below permitted the plaintiffs to deny the abandonment by testifying to their intentions in dealing with the property as th^ did. This question is somewhat novel, having only arisen in its present shape since the recent changes in the common law by which parties are made competent to testify. In Building Association v. Hetzell, 103 Pa. 507 it was said by Trunkey, J., “ Under the rule admitting parties to testify in their own behalf, where the character of the transaction depends on the intent of the party, it is competent for him to testify what his intention was. His answer of course is not conclusive, but to be considered with other evidence,” citing authorities from New York and Massachusetts. In Com. to use v. Julius, 173 Pa. 322, the plaintiff being met with a release was asked what induced her to sign it, and was permitted to testify as to her motive and inducement. This was held not to be error. The distinction was carefully guarded between that case and one of contract, where it is settled that one party may not testify to an intent not disclosed at the time, “ the thoughts of one party cannot be proved to bind the other.” After reviewing the cases upon this last point, it is said, “ This however is very different from testifying to the fact that false and fraudulent representations were the consideration or inducement to the party’s action. This is one of the facts which is always part of the res gestee, and which it was always competent for the party to prove. And now that the party is a witness, there is no sound reason why he should not prove it by his own testimony,” referring further to the analogous cases of proving that a contemporaneous parol agreement was part of the consideration of a written contract, and a vendor’s rescission of a sale for fraudulent representations which were the inducement to sell, in both of which the fact that the agreement or representation was the inducement may be proved by the party himself. So in Weaver v. Cone, 174 Pa. 104, an action for fraudulent misrepresentation by defendant of the price at which he had sold certain stock, in consequence of which plaintiff sold his at the price named, it was held that plaintiff was properly permitted to testify what induced him to sell. The point was made by appellant that whether the defendant’s representation was the inducing cause of plaintiff’s action was for the jury to determine from all the facts and circumstances, but that to permit plaintiff to state directly the secret motive which induced his action was giving him an unfair advantage, but this court held the testimony proper.

These cases seem to settle the present question in our state, and they are in accordance with .the general trend of judicial decisions in states where statutes have made parties competent witnesses. In a note to Gardom v. Woodward, 44 Kan. 758, in 21 Am. State Reps. 310, authorities from Maine, New Hampshire, Massachusetts, New York, Maryland, Indiana, Iowa, Michigan, Minnesota, Wisconsin and California, are cited as holding such testimony admissible, and it is said that Ohio and Alabama are the only states in which a contrary view is taken.

In the present case there was no element of contract. The parties had no communication with each other, but acting independently on their several rights, the defendant relying on his own judgment from the appearance of abandonment, the plaintiffs on their intentions as well as their acts. We see nothing either in sound reason or in the authorities to limit their general competency as witnesses to the latter. If the jury was wrong in crediting their words rather than drawing a different inference from their acts, the remedy is not with us.

Judgment affirmed.