Pitcairn v. Philip Hiss Co., 125 F. 110

Pitcairn v. Philip Hiss Co.

125 F. 110 | 3rd Cir. | 1903

ARCHBALD, District Judge.

According to the modern and better view, the rule which prohibits the modification of a written contract by parol is a rule, not of evidence, but of substantive law. 21 A. & E. Enc. Law (2d Ed.) 1079; Thayer’s Evidence, p. 390 et seq.; 1 Greenleaf, Evidence (16th Ed.) § 350a. Parol proof is excluded, not because it is lacking in evidentiary value, but because the law for some substantive reason declares that what is sought to be proved by it (being outside the writing by which the parties have undertaken to be bound) shall not be shown. Where, by statute, a writing is required either to create an obligation or to effect a result, as in the case of deeds and wills, or of contracts within the statute of frauds, it is readily understood that it is the writing alone that is to speak; but this is equally true of contracts which by the convention of the parties have assumed a similar form. The writing is the contractual act, of which that which is extrinsic, whether resting in parol or in other writings, forms no part. If through fraud, accident, or mistake it fails to express the contract as it was intended to be made, equity will reform it upon proper proof. But still it is the writing as corrected that is the measure of the parties’ undertaking, and they cannot be otherwise held. There is much admitted confusion on this subject, due in part to the way in which in some jurisdictions the rule is administered; and the failure to recognize the true basis of it is all that creates any difficulty here.

This is a suit to recover the balance due for decorating and furnishing the interior of the defendant’s residence. The contract for the work was expressed in certain written proposals or estimates, aggregating some $56,000, made by the plaintiff, and accepted in writing by the defendant, or by his wife in his behalf. The jury gave a verdict of $47,000, which, allowing for a bill of extras of $3,300, and deducting admitted payments of $10,000, substantially covered the plaintiffs’ claim. The defendant contended that the work, by *114express agreement, was to be completed to the satisfaction of Mrs. Pitcairn, and that as she was dissatisfied with it in many particulars, and as some of it had been done in actual disregard of her wishes, he was not bound to pay. No such condition appears in the writings; but Mr. Pitcairn testifies that it was agreed to by Mr. Hiss at the time he accepted the $31,000 contract, and that he signed solely on the strength of it, and Mrs. Pitcairn and her niece Mrs. Reese testify to similar assurances with regard to the others which had preceded it. Mr. Hiss emphatically denies these assertions, and says that he merely undertook to please Mrs. Pitcairn so far as he could. All this evidence was admitted without objection, and on the strength of it the defendant’s counsel at the close of the case requested the court, in substance, to charge that if the jury found, as they might, that the work was to be done to the satisfaction of the defendant’s wife, or otherwise he would not be bound, and that Mrs. Pitcairn, acting honestly and not capriciously, was not satisfied, even if the jury believed that she ought to have been, the plaintiff was not entitled to recover. These instructions were refused, the court saying: “The contract in suit having been reduced to writing in the shape of written propositions by the plaintiff, and written acceptances by the defendant, signed by the parties or their representatives, respectively, such written contracts cannot be contradicted or varied by evidence of an oral agreement * * * before or at the time of the execution of the contracts.” The case turns on the correctness of this charge. It is contended by the defendant that, as the evidence referred to was before the jury without objection, it could not be withdrawn from their consideration, and should have been submitted to them in the way requested. But to this we cannot agree. Notwithstanding its admission, it was still for the court to declare what, as a matter of law, was the contract between the parties—whether it was to be confined to that which was expressed in the writings, or could be extended to the verbal assurances alleged to have been given outside of them. This did not depend on how the evidence came in—whether with or without objection; it still devolved on the court, instructing the jury, to pass upon its competency and legal effect, and that is all that was done in the ruling complained of. The court simply held that the writings were to be taken as constituting the agreement, and that extrinsic evidence could not be resorted to, to modify it. No error was committed in so applying the familiar rule. Whatever be the' case in other jurisdictions, in a federal court a written contract cannot be reformed on the trial of an action at law, and, disguise it as we may, that is what the attempt to make effective the evidence in question plainly amounted to. The contract, as made out by the proposals and acceptances, was to do certain work of definite character and extent for certain specified prices. It may have lacked details, to be filled out by oral direction; but that it was to be done to the satisfaction of any particular person, who thereby became the sole arbiter as to whether it had been done as it ought, is nowhere suggested in it, and cannot now be supplied without introducing a most material variation, as the present controversy abundantly shows. It would have been easy for the defendant.when he signed to have written, “Accepted on condition that *115the work shall be done to the satisfaction of Mrs. Pitcairn,” if these were the terms on which he proposed to alone be bound; and without this we must assume that what passed between him and Mr. Hiss at the acceptance of the last proposal, and between Mr. Hiss and Mrs. Pitcairn at the execution of the others, was regarded as mere assurances of the intention and ability to please, much as a salesman commends without warranting the excellence of his wares.

Neither can the alleged undertaking of Mr. Hiss be regarded as a separate agreement resting in parol outside of the writings, and constituting a condition precedent, on fulfillment of which the obligation of the principal contract was to attach. It must stand, if at all, as an added term, by which the right of the plaintiff to final compensation is measured and concluded, entering into it vitally from the start.

Unless, therefore, the rule which prohibits the introduction of extrinsic evidence is to be disregarded, the writings must be taken as expressing the contract between the parties, and there was no waiver by the plaintiffs of their right to adhere to them, and to have the case determined thereby, merely because parol evidence as to what passed outside of them was permitted to come in. The competency of this evidence, as a matter of law, to affect the writings, was not necessarily conceded by the failure to object at the time. Moody v. McCowan, 39 Ala. 586; Hamilton v. Railroad, 51 N. Y. 100. Nor were the plaintiffs precluded from raising that question without at least something to show that the defendant had been prejudiced in consequence in his proofs.

It is said, however, that the plaintiffs in their case in chief called Mr. Hiss to show that in the choice of material they were to be guided by Mrs. Pitcairn’s wishes and taste, which was an important variation of the contract, and that, having given their version of the transaction, the defendant, on familiar principles, was entitled to give his. Bogk v. Gassert, 149 U. S. 17, 13 Sup. Ct. 738, 37 L. Ed. 631. But the agency of Mrs. Pitcairn and her authority to represent her husband were unquestioned. She signed four of the acceptances, covering an expenditure of $25,000, and if Mr. Pitcairn’s wishes had been followed she would have signed for the whole. The entire disposition of the work, as he pointedly declares, was committed to her charge. Her selection of materials, and her expressions of taste, therefore became his, and proof that she was constantly consulted in the course of the work in no wise constituted a variation of the contract, nor opened the door for the very serious modification of it which was sought to be made. The plaintiffs simply showed that they had followed the directions of one who admittedly stood for the defendant in the transaction, not in variation of the contract, but in compliance with its implied, if not its express, terms.

The judgment is affirmed.