34 Pa. 365 | Pa. | 1859
Twenty-one errors have been assigned to this record. Many of them, however, are but repetitions of others,
The remaining errors assigned relate to the rejection of evidence offered by the defendant to sustain his equitable plea of payment with leave, &c. The first, second, third, and eighth present the same question. The court overruled the offer of the defendant to prove that, before and at the time when the bond was written, James Bonbright, one of the plaintiffs, represented that he had authority to settle the claims of the Philadelphia creditors, and that, unless the bond was executed, they would indict the sons of the defendant for obtaining goods under false pretences, and send them to the penitentiary; that they had determined to do so; and that these representations were untrue. It is not easy to see how this, if proved, would have been at all material. The alleged representations were not assertions of existing facts, but, at most, of intentions, in their nature almost incapable of proof, or of disproof, and in no particular affecting the consideration of the bond. That they may have presented a motive inducing the father to secure the debts due from his sons, is possible. But a party who seeks release from the obligation of his bond, on the ground of actual fraud or misrepresentation, must establish that there was a false representation of a matter of substance, important to his interests, and actually misleading him to his hurt. A false affirmation of a matter resting in opinion, or even of a fact equally open to the knowledge or inquiry of both parties, is not available for any such purpose. Here the parties dealt upon equal terms. There was no relationship of confidence between them. Bonbright was a creditor seeking to obtain security for a debt due from the defendant’s sons. Those sons were at hand when the alleged statements were made. Neither in a court of law, nor of equity, would it be presumed, that any reliance was placed upon them. Nor were they statements of any matter relative to the interests of the defendant, or affecting him personally. Even if no such intention of the creditors existed, his situation is made no worse. It would do him no good, if all was true that Bonbright represented. No authority will be found for the posi
The defendant having failed in obtaining the admission of the evidence thus offered to establish fraud and misrepresentation, next offered it to show duress and undue influence. Coupled with it was the additional fact that the defendant was nearly sixty-six years old; that he had a mind easily influenced and excited; and that he was unduly influenced and excited, by the threats and misrepresentations of Bonbright. There was no proposal to show that he was under any physical or mental constraint, or that his mind was not perfectly free to assent to, or dissent from, the contract. What was meant by the expression “unduly influenced,” was left entirely undefined. The duress proposed to be shown, was “ duress per minas,” and that, not of threats made against the defendant, or his property; nor were they threats of any illegal act, but of a resort to a court of law. Nothing more than this statement is necessary, to vindicate the action of the court below in rejecting the evidence.
The tenth and thirteenth assignments of error have reference to the consideration of the bond. The defendant offered evidence ■to show, that the debts secured by it were those of A. Fulton & Brothers, and not the debts of Robert Fulton the obligor; and that no time was given for their payment when the bond was executed. Assuming all this to be true, no attempt has been made ■to show us how it affected the defendant’s liability. Beyond ques
Another question is raised by the rejection of the defendant’s offer to prove that previous to the execution of the bond, and at the time of the delivery, Robert Eulton had given his endorsed notes to the plaintiffs for their claim against his sons, amounting to about $8000 ; that when the bond was given for this claim, and the others included in it, Bonbright stipulated to surrender the endorsed notes in a few days, assuring the defendant that if he failed to so, the bond should be of no force; and that the notes had not been surrendered, but that, on the contrary, three of them had been put in suit. If such an arrangement was made, possibly it would constitute a defence to the suits brought upon the notes, but to allow it to be proved on the trial of this issue, would be to admit parol evidence to introduce another condition into the bond; to add to its expressed stipulations. It would be more; it would be, in effect, to allow its provisions to be contradicted by oral testimony. The bond binds the obligor to pay the notes on default of his sons. It, in effect, declares that they are to be retained by the creditors until paid. To give them up would discharge the bond. May a mortgagor prove by parol that, when he executed the mortgage, there was an engagement by the mortgagee to surrender the bond secured by it, immediately after its execution ? Surely not; and yet this was what was attempted in the present case. Written instruments are intended to furnish the evidence of contracts, — they are worthless, if they can be affected by such evidence as was here submitted.
Nearly allied to this, was the offer to prove by parol, that the bond was not to be “ entered up” for ten years, unless upon a specified contingency; and that if judgment should be entered upon it, in violation of this arrangement, it was to be null and void ; and that the bond was entered up, notwithstanding the stipulation. This was in direct conflict with the terms of the warrant of attorney. It is true, that in Ayers’s Appeal, 4 Casey 179, effect was given to such a parol agreement,.in favour of a junior execution-creditor, not, however, in favour of the debtor. As betwmen two judgment-creditors, the reason of the rule which excludes
There was no error, therefore, in rejecting the evidence, and none that we discover in this entire record.
The judgment is affirmed. ■