Hoopes v. Beale

90 Pa. 82 | Pa. | 1879

Mr. Justice Gordon

delivered the opinion of the court,

That parol evidence may be admitted to contradict, vary or even avoid a written instrument, where it is proved that, but for the oral stipulations, it would not have been executed, is a doctrine now so well settled that its discussion would be a mere waste of time.. It is understood that this rule does not apply to negotiable paper, when in the hands of innocent holders for value, but other than this, we know of no exception.

Admitting the competency of the evidence, and there is no doubt but that W ells, Mullin and Doan, the trustees of the lodge, signed the bond in suit, with the express understanding that they were not to be personally liable, and it is manifest, that under no other condition would they have executed it.

This brings the transaction directly within the ruling of Irwin v. Shoemaker, 8 W. & S. 75, wherein it was held, that where a mortgage and bonds were given to secure the purchase-money of land sold, it was competent, in an action on one of the bonds, for the vendee to prove that it was part of the contract that the vendor was to look alone to the property sold for payment of the said purchase-money. It is indeed true, as was said by Mr. Justice BogerS, in that case, in order to set aside the solemn agreement of the parties and convert it into an obligation of a different import, the evidence of the fraud or mistake ought to be of what occurred at the execution of the instrument and should be clear and precise, but when these conditions are fulfilled there is no limitation to the power to modify, alter, explain, or reform written agreements, by parol evidence, excepting only negotiable paper, as above stated.

It is urged, however, that, in the case in hand, there is no evidence of fraud in the original transaction. It may be that William B. Hoopes intended no fraud when the bond in suit was executed; but having obtained the obligation for one purpose, his attempt afterwards to use it for another, was such a fraud as brings the case within the rule above stated: Renshaw v. Gans, 7 Barr 117.

A more serious question arises from the admission of the defendants, Wells, Mullen and Doan, as witnesses. The action is by administrators, and, hence, as to it, the Act of April 15th 1869, does not apply. As was said, by our brother Mbrcur, in Taylor v. Kelly, 30 P. F. Smith 95, “The same imperative ‘shall not apply,’ extends as well to a case in which an executor is a party, as to the prohibition of husband and wife testifying against each other, and counsel to the privileged communication of his client. The language is neither doubtful nor obscure. Its clear and mandatory edict takes all these cases out of the statute.” It follows, that cases falling within the proviso, stand just as though the Act of 1869 had never been passed, and we need scarcely say, that, before the passage of that act, the evidence of these defendants would not have been admissible.

It is true the assignor of the bond, William B. Hoopes, is alive and was admitted to testify on part of the plaintiffs, but this bond was assigned to Baily in his lifetime, and at his death was part and parcel of his estate, and as such is now sought to be collected by his administrators. The assignment was made in due form, under the Act of 28th of May 1815, and so became as absolutely the property of Baily as though it had been originally drawn to him. The administrators might have brought suit in their own names; the use of Hoopes’s name as legal plaintiff is surplusage. This, however, is of minor importance, because the determining facts of the ease are, that the suit is by the administrators and for the estate, and it alone must reap the benefit or suffer the loss resulting therefrom. It follows, that none of the parties to the bond were competent witnesses.

The judgment is reversed and a new venire is ordered.