212 Pa. 96 | Pa. | 1905
Opinion by
The appellant is a foreign corporation. It furnishes fidelity bonds for persons employed in positions of responsibility and trust. One of the appellees, Harder, being employed as assistant treasurer of the Williamsport Gas Company, was required to furnish a bond. The appellant became his surety on the bond required by the employing company. The material conditions of said bond so far as the present case is concerned required the appellant to “ make good and reimburse to the employer to the extent of the sum of two thousand dollars, and no further, such pecuniary loss, if any, as may be sustained by the employer by reason of any fraudulent or dishonest acts of the employed in connection with the duties of said position, amounting to embezzlement or larceny.”
The gas company alleged that Harder had misappropriated and embezzled moneys belonging to it which came into his hands as assistant treasurer. The appellant sent its agent or representative to look over the accounts of said Harder in connection with his employment in the gas company, and claiming á shortage therein, demanded an indemnifying bond in order to protect itself from losses that might occur to it by reason of the payment of the original bond. Harder thereupon secured Henry J. Shadle as his surety in a bond of. indemnity to the appellant company in the sum of $2,000.
The condition of this bond is as follows: '£ Now the condition of this obligation is such that if the said Err H. Harder and Henry J. Shadle shall at all times hereafter, save, indemnify and keep' harmless the said Fidelity and Casualty Company, its successors and assigns, from or against all losses, payments, actions or demands whatsoever of said Williamsport Gas Company, or by reason of said bond of indemnity to the company arising out of any default, defalcation, misappropriation or other failure of duty of the said Harder under said bond on the part of said Harder as assistant treasurer of said Gas Company, or of any breach by him of any conditions in said bond, then this obligation to be void, otherwise to remain in full force and virtue.”
It is argued under this provision of the bond the appellant had the right to make this investigation ex parte, without due course of law, and entirely independent of the rights or suggestions of the appellees. It is further contended by the learned counsel for appellant that the appellees have no rights to be considered by the court and no questions of fact to be determined by a jury. We are not convinced of the correctness of this position. It is certainly unsound if the parol contract set up by the appellees be sustained. Parol evidence is admissible to alter, vary or contradict a written instrument where such evidence establishes an oral agreement contemporaneous with the execution of the writing and on the faith of which the instrument was executed: Chalfant v. Williams, 35 Pa. 212; Keough v. Leslie, 92 Pa. 424; Shugart v. Moore, 78 Pa. 469. It has also been held that where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admissible although it may vary and materially change the terms of the contract: Greenawalt v. Kohne, 85 Pa. 369.
Under the facts of this case it was competent to show by parol evidence that such an understanding or contract was entered into at the time the bond of indemnity was executed as an inducement to the execution of the same, and without which the bond would not have been executed. If the witnesses of the appellees are to be believed then there was such clear, precise and indubitable evidence as would support the parol contract set up. It is true there was a conflict of testimony about this matter, but the court below heard the witnesses on a rule to open the judgment and found as a fact that the parol contract had been established by two witnesses for appellees as against one for appellant. This finding was conclusive unless there was manifest error. We cannot say there was. We must therefore accept this fact as established.
We do not agree with the learned counsel for the appellant
After a full consideration of all the questions involved we can see no error in the disposition of the case by the learned court below.
Order and decree affirmed.