1 Binn. 610 | Pa. | 1809
This case arises on a writ of error to the court of common pleas of the county of Philadelphia. Annexed to the record is a bill of exceptions, stating several exceptions to the opinion of the court. The principal and indeed the only one of any weight, is that to the rejection of the parol testimony offered by the defendant, in contradiction to the writing on which the plaintiff founded his action. There have been many decisions in this court in favour of the admission of parol evidence, even in contradiction to written instruments. These decisions have been chiefly in cases offraud and of trust. I think the law will be found accurately stated in the Lessee of Thompson and wife v. White, 1 Dall. 424. where C. J. M'Kean delivered the opinion of the court after full consideration. The leading case on this subject is that of Hurst’s Lessee v. Kirkbride, tried at nisi prius in Bucks county 24th of March 1773. As that case has been often cited and relied on by counsel and recognised by the court, and is not in print, I have procured a state of it from the notes of C. J. Chew, who was counsel for Kirkbride. The plaintiff Timothy Hurst claimed the manor of Pennsbury under a deed from Robert Edward Fell. This deed (dated 10th of May 1770, and made in pursuance of and in exact conformity to articles of agreement dated 10th of April 1770) after describing a large lot of ground on South street in the city of Philadelphia, contained general expressions, comprehending all the grantor’s lands in Pennsylvania, and elsewhere in America. The counsel for the defendant offered to prove by parol testimony, that it was not the intent of the parties to convey the manor of Pennsbury, and that the sale of the manor was excepted at the time of executing the articles and deed. The court, after argument, permitted evidence to be given by William Parr the conveyancer who drew the writings, of conversations which he had with the parties when he received his instructions for drawing the writings, and while he was drawing them; and also that immediately after Fell had signed and sealed the writings, before he rose from his chair, and before the witnesses had signed their names, he mentioned the manor of Pennsbury to Hurst, who answered, “ As to the manor, sir, I
The second exception is, that the plaintiffs did not lay in their declaration, a special request to perform the guarantee,
The last exception is, that there was no consideration for the •defendant’s assumption. This exception must have been taken in a hurry; it is expressly laid in the declaration, that in consideration of the defendant’s guarantee, the plaintiffs sold and delivered to Berrett and Smith, goods to a large amount.
My opinion upon the whole is, that the judgment of the court of common pleas be affirmed.
Judgment affirmed.
END OF MARCH TERM, 1809.