207 Pa. 101 | Pa. | 1903
Opinion by
Defendant was employed by the Old Forge Coal Mining Company as manager. Plaintiff was president of the company
«$5,000. No. 40718.
«Pittston, Pa. September 18,1899.
« January 18th after date I promise to pay to the order of E. L. Fuller five thousand dollars, at the Miners’ Savings Bank of Pittston, without defalcation, for value received.
« John B. Law.
« $1500. No. 40719.
« Pittston Pa., September 18,1899.
«January 18th after date for value received I promise to pay to the order of E. L. Fuller fifteen hundred dollars, at the Miners’ Savings Bank of Pittston, having deposited with the said bank, as collateral security, certificate 16 representing thirty shares of Girard Coal Company stock, with authority to sell the same at private sale or otherwise, at its option, on the non-performance of this promise, without notice.
« John B. Law.”
The court overruled the offer on the ground, that the evidence offered was in contradiction of the writing; no other evidence being offered, the court directed the jury to render a verdict for plaintiff for the amount of the two notes with interest; defendant appealed from the judgment entered on the verdict and assigns for error the ruling of the court on the offer of evidence.
There is no doubt, that there is much apparent and some real conflict in the numerous cases involving the question, as to when parol testimony is admissible in contradiction of
“We propose to prove by the witness on the stand that the original debt for which the note of $5,000 was given in part payment, arose out of a transaction between the plaintiff and the defendant, in which the plaintiff sold to the defendant stock of the old Forge Mining Company par value of twenty thousand dollars, for which the defendant paid thirty thousand dollars, twenty-five thousand dollars being in cash, the proceeds of a collateral note with the stock pledged as collateral for the loan and five thousand dollars by a note which was the original note in suit, the note being a renewal of that note. That this stock was sold with the guarantee that the dividends would pay the purchase price within six years, and that if it failed to pay the purchase price in six years, that he need not pay the five thousand dollar note at all. That in any event the five thousand dollar note might be paid by the application of the dividends, and it was this representation that induced the defendant to take the stock and give the note. That the plaintiff also agreed*104 not to have the note discounted, but to hold it himself. That after holding it four months he came to the defendant and asked him to make a new note in the form of a negotiable note, that he might want to raise the money. Plaintiff consented, with a renewal of the agreement that the note should be paid from dividends. ' After holding the note for another month, until October, 1894, he had it discounted, and when it became due refused to pay it or renew it, and the defendant was obliged to renew it, and take care of it until the last renewal; and that the- refusal of the plaintiff to carry the note until the dividends paid the note was a fraud upon the defendant and that no dividends ever accrued on the stock.”
Defendant offered no other testimony in support of the alleged parol agreement, neither sustained nor offered to sustain him by other witnesses or by corroborative circumstances. Surely, the testimony of a single witness, and he the defendant, ought not to be sufficient to contradict and set aside his deliberate promise in writing to pay on a fixed day, absolutely, a certain sum in money.
But besides this, the court below placed its ruling on the ground that the offer even if sustained was not proof of such fraud, accident or mistake in the execution and delivery of the writing as rendered it admissible. In this the court was correct ; the proposed evidence amounted to nothing more than an offer to prove an independent parol contract, that the note was to be paid in another method than that expressed on its face. It is straining both legal and moral definitions, to call the mere failure to perform an oral promise to accept payment in a particular form, a fraud; dishonest it may be, but it is no more a legal fraud than the immediate collection of a past due debt on which the creditor has orally promised the debtor indulgence. As there was no fraud in the creation of the instrument, nor in not waiting until the dividends on the stock paid it, it comes under the rulings in Hill v. Gaw, 4 Pa. 493, Hacker v. National Oil Refining Co., 73 Pa. 93, and the other authorities cited by the learned judge of the court below, holding that evidence of fraud, accident or mistake can alone successfully contradict or set aside the writing. As to the other assignments, they possess no merit warranting discussion; all are overruled and the judgment is affirmed.