218 Pa. 612 | Pa. | 1907
Opinion by
This is not the ordinary case of the obligor in an instrument for the payment of money seeking to escape the obligation through parol testimony. On the contrary, the case starts with a clear agreement of the parties in writing that notwithstanding the face of the note, the maker was not to be liable. It is admitted that when the original note (of which the one in suit was a renewal) was executed, an oral agreement was made by the parties with regard to its payment and the liability of the maker. This agreement was put into writing nearly two months later by the plaintiff bank itself and is the substantial basis for the determination of the case. It provides in explicit
The underlying motive and real intent of this arrangement as testified to by the defendant were that the bank was the holder of obligations of the Acme Lime Company, Avondale Marble Company and other predecessors and constituents of the
Against this ample and complete explanation the plaintiff set up that the writing did not contain the whole agreement, two matters being overlooked or accidentally omitted as stated in the charge; first, that Shaw “ was to furnish monthly statements of the profit or loss at which this business was being conducted, because under the agreement they were to receive one-third of the profits if there were any ; and the second was that he was to see to the furnishing of the stock or cash which was to satisfy them or to secure them in their unsecured notes which they held against Yollmer, Grimm, The Acme Lime Company and some others. ”
Of these matters it is to be said in the first place that it does not appear that the omissions were at all material. It is not shown that the plaintiff lost any profits that were made to which it was entitled, or that it ever demanded and was refused the stock which the written agreement called for as collateral for the indebtedness of the Acme Lime Companjr and the other parties named.
The defendant denied positively that there were any such omissions in the writing as were alleged. Some discrepancies in his testimony are shown, but they are on minor and immaterial points and perhaps not to be wondered at considering the lapse of six or seven years between the transaction and the trials. On the main point of his exemption from liability his testimony is clear and positive and in accordance with the writing. The case does not really need his testimony at all, but could stand firmly on the writing alone.
For the plaintiff on the other hand the bank directors, five in number, testified, as summed up in the charge, that “these two omissions were made and that even when the paper was read over to them and they approved it and ordered their officers to execute it and forward a copy to Mr. Shaw, that it was an oversight on their part, that they mistook or did not recall it at that time, and it seems did not recall it until a far later
Judgment reversed and judgment directed to be entered for the defendant non obstante veredicto.