Becker v. Second Active Building Ass'n
239 Pa. 590
Pa.
1913
Check Treatment

Opinion by

Mr. Justice Stewart,

This, appeal has nothing to support it. What is complained of is the rejection of an offer of evidence to prove an oral agreement, made contemporaneously with the written agreement by which the parties covenanted for an exchange of certain properties. The plaintiff was owner of two separate lots in the City of Philadelphia, both alike subject to the lien of a mortgage for $8,570.., The defendant was owner of another property *593in the City of Philadelphia which was subject to a lien of a mortgage for $3,600. By written articles of agreement dated 13 September, 1901, they covenanted for an exchange of one of the properties owned by the plaintiff for that owned by the defendant, on these terms: the defendant was to convey its lot to the plaintiff subject to the mortgage of $3,600 for a cash consideration of $2,500; the plaintiff was to convey to defendant one of the lots owned by her, subject to the mortgage of $8,570, and to pay defendant an additional cash consideration of $2,400. Deeds were made and delivered 12 October, 1900, pursuant to the agreement, and the contract as written was fully executed in all particulars. The $8,570 mortgage which bound the lot retained by the plaintiff as well ás that conveyed to the defendant was foreclosed, and at the sheriff’s sale which followed both lots were sold. The plaintiff claims that she thereby sustained a loss of $4,000; but just how this resulted is nowhere explained. Her action was brought to. recover this loss, she alleging that by an oral agreement, made contemporaneously with the written contract, defendant had undertaken to have the mortgage which encumbered both her properties released as to the one she retained. On the trial of the case an offer was made to show by the witness — the plaintiff herself being on the stand — that she was induced to sign the written agreement of exchange because of this verbal agreement. The rejection of the offer is assigned as error. It ought not to be necessary to repeat so frequently the rule that all prior agreements, verbal or written, become merged in the sealed instrument which is the final result of the bargaining, and which can neither be added to nor subtracted from by parol evidence, excépt as fraud, accident or mistake be shown. While the offer in this case was to show a parol agreement for additional consideration to that expressed in the written contract, it suggests no explanation of the fact that the written contract is silent as to such additional consideration.. It is no*594where averred that it was omitted through fraud, accident or mistake. The plaintiff knew, or should have known, when she signed the written contract, that it contained no covenant that defendant would cause her remaining property to be released from the lien of the mortgage; she did not ask to have such covenant inserted, but relied wholly upon the oral promise which she says defendant had made that it would secure such release. The offer was not to prove that defendant made the promise the plaintiff now sets up in order to induce her to sign a written contract from which the covenant had been omitted inadvertently or otherwise, as was the case in Croyle v. Cambria Land & Imp. Co., 233 Pa. 310, which appellant thinks so much resembles this, but simply that in signing the written contract which did not express the entire consideration she understood she was to receive, she had in mind defendant’s promise, and that this circumstance induced her action.

A more careful examination of the case referred to would have made the distinction apparent between that case and this. There the oral agreement which was set up had been inadvertently omitted from the written agreement, when discovered by the party to be prejudiced by the omission he at once declined to execute it. To avoid the delay that would be necessary, were another contract to be written, and induce the party to execute it as written, the other contracting party promised that if he signed as written what had been agreed upon orally and by mistake had been omitted should be faithfully performed. On the strength of this promise, the contract there was executed. The offer in the present case was simply to show a contemporaneous oral contract, the omission of which from the written contract did not influence the plaintiff one way or other in respect to the execution of the latter, and under rules which admit of no controversy, it was properly rejected.

The judgment is affirmed.