205 Pa. 38 | Pa. | 1903
Opinion by
The agreement on which the appellant brought this suit was for the sale, or rather exchange, of real estate. He alleged in the statement of his cause of action his readiness and willingness to comply with the terms of the written contract, and claimed damages from the defendant for the latter’s failure to perform them. An affidavit of defense was filed in which the defendant averred his willingness to comply with the contract and alleged the inability of the plaintiff to do so on account of obstacles that were set out in detail. A replication was then filed, in which the plaintiff, in answer to the averment in the affidavit of defense that he owed $10,000 upon the property which he was to convey, to the defendant, set up an alleged oral agreement entered into by the defendant before and at the time the written one was executed, by the terms of which the defendant had agreed to raise for the plaintiff the said sum of $10,000 to enable him to pay off what was substantially a mortgage upon the premises. With the pleadings in this shape the case came to trial, and, under objection by the defendant, the plaintiff was allowed to prove the oral, cotemporaneous agreement set out in his replication.
Without proof of the kind required by the law in a case like this, that Nicola had made the oral agreement to raise the $10,000 for Krueger, it is clear the plaintiff had no cause of action against the defendant, and the jury were so instructed by the learned trial judge. It is equally clear that his statement, containing no averment of such an agreement, and its omission from the written one by fraud, accident or mistake, was insufficient to support the action, and a judgment on it could not be sustained. To contradict or vary the terms of a written contract by an oral, cotemperaneous agreement between the parties, there must be allegation as well as proof, not only of it, but of its omission through fraud, accident or mistake from the writing. This has been ruled so frequently that reference is hardly needed to one or two of the many authorities on the subject. In Wodock v. Robinson, 148 Pa. 503, the plaintiff’s statement set forth a written lease, in which the lessee, her husband, covenanted to keep the premises in good order and repair during the term, but there was an allegation of an oral agreement on the part of' the lessor, at the time of
The rule that the allegata and probata must agree in a case like this is not a mere technical one: Rogers, J., in Clark v. Partridge, 2 Pa. 13.
Assuming, on the authority of Mahon v. Gormley, 24 Pa. 80, and Murray et al. v. Keyes et ux., 35 Pa. 384, that a material defect in a narr. may be cured by a replication, to be regarded as an amendment to it (though the much better practice is to formally amend the narr. itself), such replication, it need hardly be said, must be as full as the amendment for which it is substituted. The replication here contains simply an averment of the cotemporaneous parol agreement, with no allegation of its omission from the written one by mistake. As a support to the defective narr., this replication was without strength and useless. Under the pleadings, the testimony as to the oral agreement, promptly objected to, on the ground that there was no allegation in the pleadings that it had been omitted from the written contract by fraud, accident or mistake, should have been excluded. At present it is not necessary that wTe consider other questions raised on this appeal, for, in sustaining the first assignment of error, we reverse the judgment without awarding a new trial.
Judgment reversed.