Everson v. Fry

The opinion of the court was delivered, by Sharswood, J. This was an action instituted by the plaintiff below as trustee upon articles of separation between Bichard Ever-son and himself for and on behalf of Minerva Everson, the wife of the said Bichard Everson, to recover arrears of the stipulated allowance therein agreed to be paid by the husband for the support of his said wife during the separation. The defendant pleaded among other things the special matter set up in his affidavit of defence filed in the cause, and, upon this with other pleas, the parties went to trial. The matter referred to was that it was agreed that the wife should vacate the house then occupied by her belonging to the defendant, on the first of January following the date of the articles, up to which time she was not to pay any rent, but that she refused to leave the premises, and continued to occupy them subsequent to that time — and in consequence the defendant claimed as a set-off a reasonable rent for such occupancy. This was the substance of the affidavit. Had it been pleaded in form it would have been a special plea of set-off. After the plaintiff had given in evidence the articles of separation and closed his case, the defendant made two separate offers to prove this agreement and its breach — in the first stating it as an agreement by the plaintiff and the wife, and in the second as an agreement generally without saying between whom. We do not consider this dif [330] ference in the offers material, as it is necessarily implied in the last offer that the agreement was between the parties to the suit, and that therefore Henry Fry, the trustee, was one of the parties. The learned judge below rejected both the offers on the ground, it would seem, that it was an attempt to vary the terms of the written contract. In this we think there was error. It is to be observed that a set-off is a counter claim, and is to be regarded in all respects as if it was a separate action by the defendant against the plaintiff. If the husband in this case could have recovered in an action against Fry upon the evidence here offered, and rejected, it is clear he could avail himself of it as a set-off against Fry’s demands in this action. The offers were to prove a parol contract; it may be cotemporaneous but nevertheless altogether separate from and independent of the articles of separation. It did not vary or contradict any one of the stipulations contained in the articles, but was entirely consistent therewith. In the written contract Everson agreed that it should^ be lawful for his wife to live separate from him wherever she might choose, and that he would not molest her. He did not agree to furnish her with a,house to live in, but it is a necessary implication that the annual sum he agreed to pay to her was to be in full of all demands by her upon him, and the trustee expressly covenants to indemnify the husband against all debts which the wife might contract. The rule which excludes parol evidence to contradict or vary a written instrument does not apply to such a collateral agreement, even though it may be founded upon the consideration of the writing. In Weaver v. Woods, 9 Barr 220, it was decided by this court that where a written contract is executed for a consideration therein mentioned, a party is not concluded in an action for the breach of a parol contract from showing that the agreement evidenced by the writing was the consideration for the cotemporaneous parol contract. As we have seen, the same rule applies to a set-off as to an action. It follows that if the proof sustained the offer, Fry was liable in damages to Everson for the breach of the contract, and the measure of damages would be the rent which could have been obtained by Everson for the house so occupied by the wife. Judgment reversed, and venire facias de novo awarded.