248 Pa. 440 | Pa. | 1915
Lead Opinion
Opinion by
On October 1, 1912, Sarah A. Potter, the appellee, entered into an agreement, in writing, to sell a farm to Ida Grimm, the appellant. The puchase price fixed in the agreement was $2,000, but, as a matter of fact, the vendor was to get $3,000 for the property. This was the price she asked for it, and the inducement which led her to execute the written agreement was a promise made to her by the appellant, through an authorized agent, to pay, in addition to the $2,000, such sum as, added to land damages to be awarded to her for the location of a public road through the property, would make up the additional $1,000. The verdict of the jury established the fact that such parol contemporaneous promise was made by the appellant, and that, upon the faith of it, the appellee signed the written agreement. The county of Lawrence paid the appellee $500 as damages for the location of the road through the farm, and she thereupon demanded of the appellant $2,500 as the balance of the purchase-money, and offered to execute a deed upon the payment of that sum. This the appellant refused to pay, tendering but $2,000 and demanding the delivery of a deed to the property. This action was then instituted for the recovery of $2,500, the balance of the purchase-money claimed by the appellee, and a jury found that she was entitled to it. The question of her right to recover a sum in excess of that fixed in the written agreement was submitted to the jury in a charge wholly free from error and couched in words so plain that the well-settled rule of law relating to the transaction could not have been misunderstood. The instructions were that the plaintiff was not entitled to recover more than the
On this appeal from the judgment entered on the verdict in favor of the plaintiff below the only question raised by- the several assignments of error is as to the right of the plaintiff to recover anything in excess of the sum of $2,000, and the complaint of the appellant is that the court admitted evidence in support of the alleged parol contemporaneous agreement. If the case were one in which the plaintiff was seeking to' recover on the ground that the parol agreement had been omitted from the written contract by fraud, accident or mistake, counsel for appellant might well contend that the appellee was bound by her written agreement, but such is not the case as presented by her in the court below. The parol agreement was not omitted from the written one by fraud, accident or mistake. This is a fact found by the jury. What the purpose was in omitting it may be readily conjectured. The vendee wished to pay as much less than $3,000 for the property as possible, and it may very naturally have occurred to her that, if it should be known she was to pay $3,000 for it, a jury, in assessing damages to the appellee, might take this fact into consideration and lower them accordingly. This would have been to the obvious disadvantage of the appellant, and it can, therefore, be well understood why she may have much preferred that the written agreement should not disclose what she was actually to pay for the property. The case as made out by the plaintiff was one in which a material matter inducing her to sign the agreement had been omitted from it, in pursuance of an understanding between her and the vendee. The corroborated testimony of the plaintiff, believed by the jury, was that the parol contemporaneous agreement was what induced her to sign the contract, and that she
From Hurst’s Lessee v. Kirkbride, decided in 1773, and referred to by Tilghman, C. J., in Wallace v. Baker, 1 Binney 610, this court has, through all the intervening years, uniformly held that parol evidence is admissible to show a verbal contemporaneous agreement, upon the faith of which a written instrument was executed, even though such evidence may vary or change the terms of the same. In the comparatively recent case of Croyle v. Cambria Land and Improvement Company, Limited, 233 Pa. 310, the issue submitted to the jury was whether the plaintiff, in executing and delivering to the defendant a deed of release fon a right of way over his land for a thoroughfare, did so in reliance upon a contemporaneous parol promise made by the defendant company that it would, within a fixed period, so fill a flat or lowland on plaintiff’s lot at either side of a road to be constructed as to bring it to a level with the surface of the thoroughfare. As it was not alleged in either the statement of the cause of action or in any of the offers of evidence that the parol promise had been omitted from the deed of release by fraud, accident or mistake, evi
As counsel for appellant seem to place much reliance upon an utterance of Mr. Chief Justice Paxson in Irvin v. Irvin, 142 Pa. 271, it is sufficient to observe that what was there said must be regarded as applicable to the facts in that case. In the long line of our .cases uniformly holding that it was competent to show that a parol contemporaneous agreement was the inducement to the execution of the written one, the omission of the former from the latter was, as a rule, to all intents and purposes, the deliberate act of the parties.
The assignments of error are overruled and the judgment is affirmed.
Dissenting Opinion
Dissenting Opinion by
In Irvin v. Irvin, 142 Pa. 271, Paxson, C. J., uses this language:
*447 “I know of no decided case and no principle of law which permits an oral contract, made at the same time with a written contract, under seal, and purposely omitted thferefrom, to be set up not only to contradict but to destroy it. The two agreements cannot possibly stand together; one or other must fall. When parties without fraud or mistake have put their engagéments in writing, that is not only the best, but the sole evidence of their agreement.” This indicates sufficiently the ground of my dissent. It only remains to point out the distinction between the present case and Croyle v. Cambria Land and Improvement Co., 233 Pa. 310, cited as supporting the doctrine in this case applied. As will be seen the cases are widely apart. We quote from the opinion in the case referred to.
“What was attempted to be shown was that the plaintiff knowing that the deed of release as prepared imposed no obligation on the defendant to fill the low land to the level of the thoroughfare, refused to execute it because of this circumstance and requested that another instrument containing this provision be written; that the defendant company’s representative desiring to avoid delay thereupon promised the plaintiff that if he would execute the paper as written, the defendant company would at its cost make the required fill within a given period; and that it was upon the faith of this promise that plaintiff executed the deed of release.” Here was an omission not contemplated by the parties, but which happened through the mistake of the scrivener. When discovered, the party prejudiced by the omission refused to sign the paper as written. He was induced to sign it by the other party promising to make good what had been omitted. The case was thus brought clearly within the established exceptions to the rule that excludes parol testimony when offered to contradict or vary the terms of a written instrument. In the present case what equity is shown to bring it within any recognized exception? Nothing was omitted from the*448 writing that either party wanted inserted; it was written just as the parties intended it should be written; it was never intended that what is claimed as consideration, in addition to that appearing in the instrument, was to appear therein, but it was omitted by mutual agreement between the parties, to serve some purpose of their own. If, under such circumstances parol evidence may be admitted, the rule which excludes such evidence when offered to alter, add to or contradict a written instrument, to use the language of Strong, J., in Fulton v. Hood, 34 Pa. 365, is utterly annihilated. The distinction we have pointed out between these two cases may be quite as plainly observed between this and the other cases upon the opinion filed relies. In Renshaw v. Gans, 7 Pa. 117, the action was in covenant on articles for the purchase of land by Gans, the articles stipulating for a warranty deed. The deed tendered concluded with a general Avarranty “excepting quit rents.” It was refused because not in compliance Avith the written terms. Plaintiff offered to shoAV on the trial that the exception Avas not put into the article of agreement because the parties conceived the rents to be in the nature of annual taxes, and therefore not coming within the description of encumbrances intended to be guarded against by the stipulation for a warranty deed. In the opinion in the case by Bell, J., it is said,
“The defendant by his own act, proceeding upon a misapprehension, having prevented the introduction of a provision in the articles, in conformity with his oral agreement, it would be inequitable to permit him to escape from his contract by a rule of evidence designed to prevent fraud.”
Here again what was attempted to be supplied was an omission occasioned by mistake, one which the defendant was seeking to take advantage of and for which he was himself responsible. One can readily understand how the admission of parol evidence in such a case would not offend against the rule, but would be within
To conclude: it is always safer and better to insist that distinctions in practice as to the remedies to be adopted shall be observed, rather than relax rules of evidence to an extent that destroys their usefulness in order that a plaintiff may recover in an action mistakenly adopted. The recovery should have been for the amount due according to the terms of the written contract and nothing beyond.
