18 A. 484
Pennsylvania Court of Common P...
1889

*355Opinion,

Me. Justice Green:

The rather numerous assignments of error in this case may be considered under a few heads.

First. Those which relate to the admission and effect of parol testimony to change the written contract. These embrace the assignments numbered 4, 6, 8, 9, 10,11, 12, 13, and 20.

The learned court below, both in admitting the parol testimony and in submitting it to the jury, stated the law with grеat care and caution, and with entire correctness. It was stated repeatedly in the charge that, in the first instance, the written contract of the parties must be regarded as the whole of their contract, and that it cannot be altered or changed by parol testimony of what occurred at the execution оf the writing, except by proof, which the learned judge thus defines: “We say to you, first, that the written agreement, the law says, is the contract between the parties, and that when any person seeks to change a contract in writing, he must do it by clear, precise, and indubitable proof. And, by that kind or measure of proof, is meant, that the source from which the testimony comes must be credible; the statements of the witnesses must be clear and distinct as to what was said and done, and, altogether, it must be of a character to convince the minds of the jury that the part claimed was omitted, either by fraud, accident, or mistake of the parties, or, if not so kept out оf the contract, that the party who complains of the omission was induced to sign the contract by the statement or the contemporaneous agreement made at the time the contract was signed. We are not to look for testimony that is beyond all doubt, as that would be requiring a measure of proof that the law does not require.” There was more, of the same kind of direction, and it was accompanied by a very lucid and perfectly impartial presentment of the testimony on both sides, and concluded by a repetition of the caution that the jury must be convinced that the witnesses stated what actually did occur at the time of the еxecution of the contract; that they were not mistaken in their testimony, and that the essential part of the contract thus omitted was the inducing cause that led the plaintiff to sign the written contract. It is not necessary to review the numerous cases in which this subject has been discussed and the fore*356going principles announced. Thеy are well illustrated in the cases of Walker v. France, 112 Pa. 203 and Thomas v. Loose, 114 Pa. 35. In the latter case we said: “ Parol evidence is admissible to establish a contemporaneous oral agreement which induced the execution of a written contract, though it may vary, change, or reform the instrument. It has been often said that such oral agreement must be shown by evidence ‍​‌‌​‌​‌‌​‌‌​​‌​​‌​​​‌‌‌‌‌‌​​‌‌‌​‌​​​‌‌‌‌​‌‌​‌‌‌‌‍that is clear, precise, and indubitable; that is, it shall be found that the witnesses are credible, that they distinctly remember the facts to which they testify, that they narrate the details exactly, and that their statements are true. Absolute certainty is out of the question.”

The law having been defined by the learned court below with еntire accuracy, the only remaining question is, whether there was evidence in the case of a character proper to be submitted to the jury for their action. The evidence consisted of the written contract and the testimony of one witness, D. L.Ferguson, on the one side, and the testimony of two witnesses, T. L. Rafferty and E. W. Heрburn on the other. The written contract contains no reference to the verbal stipulation which, it is alleged by the plaintiff, formed part of the real contract of the parties, and induced the plaintiff to sign it. Rafferty had made an agreement with Hepburn and Hoover for the sale of a quantity of white pine timber on a designated tract of ninety acres. The contract in question here was, in substance, a release by Rafferty to Hepburn and Hoover of their obligation under the original written agreement by him with them, and a transfer of the same to D. L. Ferguson. There was an added modification of the original agreement changing the price to be paid for the logs which were to be cut. There was no stipulation for security to Rafferty, the vendor, in the original contract, and there was none in the written agreement with D. L. Ferguson. But the plaintiff, Rafferty, alleges that he was not willing to make the transfer to Ferguson unless he had security for the payment of the purchase-money, and whether thеre was an agreement for such security, made verbally, but omitted from the writing, was the question in controversy.

The oral testimony on that subject was delivered by Rafferty and Hepburn for the plaintiff, and by D. L. Ferguson for the *357defendant. Rafferty, being examined, testified, inter alia, as follows: “ Q. Now what did Hepburn and Hoover do with this timber after the sale of it by you to them ? A. They came to me and wanted to sell it to D. L. Ferguson—they wanted to know if I would release them and take D. L. Ferguson—I told them I did not care if I would be secured on the logs. So we went and wrote the article out. Q. Where was this conversation ? A. My recollection is that it was made at ’Ras Hepburn’s house. 'Q. Who was there at the time? A. Bill Hoover, ’Ras Hepburn, Ferguson, and I. Q. What did you do when you met there ? A. He wrote out the article. Q. Who wrote it? A. D. L. Ferguson wrote it himself; it was written on ■the bottom of the old article. Q. You have testified that when Hepburn spoke to you about making this change you stated that you would if you had security ? A. Yes, sir. Q. Who was present then at Hepburn’s house at that time ? A. ’Rаs Hepburn, Bill Hoover, and Ferguson. Q. State what was said there about the transfer of this agreement? A. Why, I told them that I would let them have the logs if they would give me security; he said he would let me have the logs as security. Q. Did you then proceed to make a written contract? A. Yes, sir. Q. After he drew it did you sign it? A. Yes, sir. Q. Was there anything said then? A. I asked him where the written security was, and he said the logs was security—that Hepburn and Hoover was witnesses. I asked him to put it in the article, but Ferguson said witnesses was as good as if it w'as in the article. (Repetition of part of answer.) A. Yes, sir, of course I did not know it then; that is what he told me, that the witnesses was just as good as the article. By the Court: What was the reason that you signed this agreement? A. Why did I sign it ? Because they wanted the loosing of it, and I thought if I would give him (Ferguson) the agreement and have the logs for security it would be all right. Q. When you found that this security that you spoke of was not in the contract, why did you sign it ? A. He said the logs would be good for security; he told me he would give me security and I signed it. I asked him what the security was, and he said the logs was security; he told me that before, and then afterwards that the logs were security.”

Under this testimony it can hardly be said there was any *358fraud, accident, or mistake, except mistake of law, in omitting the verbal agreement for security from the written contract.

It was omitted in fact, and the plaintiff knew it, and assented to the verbal agreement for security. But it seems quite cеrtain that Rafferty was induced to sign the written contract by means of the verbal agreement, and there is at least ample testimony to justify the jury in finding ‍​‌‌​‌​‌‌​‌‌​​‌​​‌​​​‌‌‌‌‌‌​​‌‌‌​‌​​​‌‌‌‌​‌‌​‌‌‌‌‍that such was the fact. It is still necessary, however, to recur to the other evidence in order to determine whether upon the whole it conforms to the legal requirements in such cases. E. W. Hеpburn, another and a disinterested witness, was examined, and testified as follows : “ Q. Did you go and see Levi Rafferty and talk to him before you made this transfer to D. L. Ferguson? A. Yes, sir. Q. Where was this contract of December 2, 1882, made? A. At my place. Q. Who was present at your place at that time ? A. Nobody but the four of us, W. C. Hoover, D. L. Ferguson, T. L. Rafferty, and mysеlf. Q. Who wrote that contract? A. D. L. Ferguson. Q. What, if anything, was said there between Ferguson and Rafferty with reference to security for the logs mentioned in that contract ? State what occurred there and what was said by the parties in that room. A. There was not a great deal said about it. When Rafferty allowed (insisted) he ought to have somе security for the logs—that was either before or after this was written out—I don’t know which, but I rather think before it was signed— Mr. Ferguson told him he could hold the logs until he got the money; he allowed he ought to have something in the agreement, and Ferguson allowed that witnesses were as good as a bargain..... Q. Was your attention called to this as a witness? A. Yеs, sir; he said Mr. Hoover and Mr. Hepburn could witness it. I was sitting between Ferguson and Levi Rafferty.”

This testimony is corroborative of that of the plaintiff, and would also justify an inference that the signature of Rafferty was obtained by means of the verbal agreement in regard to the security.

The testimony of Hoover was not taken, and the only remaining evidеnce as to what occurred at the time of the execution of the written contract is the testimony of D. L. Ferguson, the other party to the contract. He says he was *359present with the other parties named, when the agreement between himself and Rafferty was made, but gives no testimony whatever as to what was said at the time. There is but a single sentence in the whole of his testimony that relates in any manner to what was said by the parties when the contract was signed, and it is in these words : “ There was no other contract made except that made in the supplemental agreement.” Just what he means by this is not explained. The question to which the above was an answer is not printed, and it cannot be known whether his attention was called to the testimony of Rafferty and Hepburn as to the verbal agreement about security or not. Whether he meant to say there was no other written contract than the supplemental agreement we cannot know, but certain it is that his testimony as it stands meаns at the utmost nothing more than that in his opinion there was no other contract made than the supplemental agreement. He contradicts nothing that was testified to by Rafferty and Hepburn, although he wrote the agreement, was himself a party to it, and was present during the whole of the time of its preparation and executiоn. Such silence in the face of the opposing testimony is much more than mere negative testimony. It is highly persuasive evidence that the conversation testified to by the other witnesses actually took place just as they stated it.

The ease then stands with the direct, positive, and uncontradicted evidence of two witnessеs to the fact of the contemporaneous verbal agreement, and the non-denial of it by the other party. The testimony is precise, definite, distinct, positive ; the witnesses are not impeached or contradicted in any manner, and the story they tell is highly probable and reasonable. If their testimony is believed it is of an indubitable ‍​‌‌​‌​‌‌​‌‌​​‌​​‌​​​‌‌‌‌‌‌​​‌‌‌​‌​​​‌‌‌‌​‌‌​‌‌‌‌‍character in legal effect, and fully warrants the inference that the signature of Rafferty was obtained by means of the verbal agreement. This brings the case within the frequent rulings of this court on this subject, and justifies the learned court below in their action in admitting the evidence and in their treatment of it in the charge and answers to points. Thеse several assignments of error are not sustained.

There is no merit in the seventh assignment. The notice was at least sufficient to put an intending purchaser upon inquiry, and the whole question as to whether it was read at the *360sheriff’s sale and the defendant had opportunity to hear it, was very fairly treated in the general charge. The notice contained a distinct claim of title to the logs in Rafferty, and a prudent man inquiring of him, as he would be bound to do, would, it must be presumed, have been informed of the particular kind of title claimed and of the facts upon which it was based.

Seventeenth assignment, which covers also the eighteenth and nineteenth. These all relate to the right of the plaintiff to maintain the action of replevin in his own name, without joining others who appear to be co-tenants in common with him of the land from which the logs were cut. The action was not brought by the plaintiff as one of several tenants in common to recover his undivided portion of the logs, but he asserted his right to recover and sought to recover the whole of the logs. The defendant claimed title to the whole of the logs under a sheriff’s sale of the title of D. L. Ferguson, and D. L. Ferguson’s title was derived exclusively from the sale made to him by the plaintiff. The defendant being a purchaser with notice of the plaintiff’s claim of title, is in no better positiоn than D. L. Ferguson would have been if he had been the defendant. He at least took the logs and all the title he had to them came directly from the plaintiff. The sale was at least sufficient to pass over the logs to D. L. Ferguson, who actually took possession of the whole of them under his contract of sale with the plaintiff. The lаtter certainly had title enough to enable D. L. Ferguson, and through him the defendant, to get possession of the logs. In point of fact, neither D. L. Ferguson nor the defendant was ever molested or interfered with in any way, either in the taking or holding possession of the logs, or any of them, by any of the alleged co-tenants in common of the plаintiff, although five or six years had elapsed from the cutting at the time of the trial. Moreover, although Danver, who sold the timber to the plaintiff, was named in the contract of sale as guardian of two of the brothers of James Rafferty, who was the owner of the land from which the logs were cut at the time of his death, he assumed to sell the whоle of the timber claiming he had a right to do so. Mrs. Martha Rafferty, who, as the mother of James, was tenant for life of the land and paid the taxes on it, testified that it was timber land, part *361of which had been cut off before her husband bought it, and that she consented to the sale of the timber by Danver to T. L. Rafferty, the plaintiff. Danver took a judgment note as trustee from T. L. Rafferty for $1,100, the whole of the purchase money of the timber, and entered it of record at once. None of the co-tenants ever made objection to the sale or set up any title to the timber against either D. L. Ferguson or the defendant.

We think it clear from these facts that the plaintiff must be regаrded as seeking to recover upon the whole title to the logs, with evidence of consent of the other parties in interest; ‍​‌‌​‌​‌‌​‌‌​​‌​​‌​​​‌‌‌‌‌‌​​‌‌‌​‌​​​‌‌‌‌​‌‌​‌‌‌‌‍especially of his mother, who, quite possibly, had a legal right as tenant for life to cut off all the timber, that being the main profit of the land: Williard v. Williard, 56 Pa. 119. This being so, his right to recover cannot be disposed of uрon the assumption that he is simply one of several tenants in common seeking to recover for his undivided • interest only, and authorities to the effect that no recovery can be had upon such a title do not determine the case. It seems to us quite plain that, as between himself and D. L. Ferguson, or the defendant with notice, he had the right to the possession for the security of the purchase money, and at least a qualified title to the logs. In such circumstances the authorities are plain, that there may be a recovery. In Harlan v. Harlan, 15 Pa. 507, we said: “ It is well settled as a general principle, that in Pennsylvania replevin lies wherever one man claims gоods in the possession of another, and this, whether the claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right of possession.” The same;, doctrine is repeated in Miller v. Warden, 111 Pa. 800, and in other cases. The case of Reinheimer v. Hemingway, 85 Pa. 432, is not in point, as it presents a different question growing out of entirely different fаcts. The defendant here sets up no adverse title to the logs, whether derived from a stranger or from any of the co-tenants. He literally claims upon the very title which he derived from the plaintiff, and seeks to impeach it for the mere purpose of avoiding payment of the purchase money, which he certainly cаnnot do. He never has been evicted from his possession which the plaintiff gave him, nor has his title even been threatened, yet he proposes to keep both *362the logs and tbeir purchase money, upon the mere allegation that others are interested in the logs with the plaintiff, although there is satisfactory evidencе of their assent to the plaintiff’s action and claim of title. These several assignments of error are not sustained.

The remaining assignments are without merit and are dismissed. The case was tried with much care, and an extremely lucid and able charge was delivered to the jury. It has been argued in this ‍​‌‌​‌​‌‌​‌‌​​‌​​‌​​​‌‌‌‌‌‌​​‌‌‌​‌​​​‌‌‌‌​‌‌​‌‌‌‌‍court with great force and ability by the learned counsel on both sides. It seems to us substantial justice has been done, and we are not convinced that any error occurred on the trial.

Judgment affirmed.