Thorne, McFarlane & Co. v. Warfflein

Mr. Justice Green delivered the opinion of the court, October 5th 1882. The chief contention in this case was upon the admissibility of parol evidence to control and alter the written agreement of the parties. Certain correspondence had passed between Warfflein, the vendor of the land in question, and Meylert, the purchaser, which resulted in an offer by WariHein to sell the 98 acres and the two town lots for $1,400, the terms of payment to be fixed by Meylert within eighteen months, with the expression of a willingness to enlarge the time if desired, and an acceptance of the offer by Meylert. Then followed a letter and telegram merely fixing a time to meet. On August 21st 1877, the parties met, in pursuance of appointment, at Jenkintown station, on the North Penn railroad, and there concluded their bargain. Meylert paid WariHein one hundred and ninety dollars on account of the purchase money, and a written receipt was given for it, and in this receipt the terms of the contract were expressed. It is in the following words: “Received, Jenkintown, August 21st, 1877, of Michael Meylert, one hundred and ninety dollars on account of two town lots in Laporte, and ninety-eight acres of land in Laporte township; and it is hereby understood and agreed that said Meylert will give bond and mortgage for balance of purchase money,'payable in three equal annual payments from date, with interest annually on the whole sum unpaid, and that said WariHein will give deed of same date for said lots, each to be dated September 1st 1877. So agreed August 21st 1877. Witness our hands and seals. (Balance of purchase money is twelve hundred and ten dollars.) So agreed day last above written. “ John Warfflein. [seal.] Michael Mrvlert. [seal.] ” [525] The learned judge of the court below charged that this paper was more than a mere receipt; that it was an agreement to sell the land referred to, and if not varied by parol testimony, it afforded a complete defense to the action. Ii.e held, however, that parol testimony was admissible of terms not contained in the paper, and which changed it materially, and he left to the jury the question of the effect of this testimony upon the written agreement, on the ground of fraud in procuring the plaintiff’s signature. The learned judge states the respective contentions of the parties, among the rest that it was claimed for the plaintiff that his signature was obtained by means of an assurance given by Meylert to the plaintiff that the timber should not be cut till the purchase money was paid, and that the mortgage to be given should contain such a provision. He then defines the meaning of fraud, and refers to the witnesses, saying that their credibility is for the jury, and instructs them to weigh the whole testimony, and find a verdict in accordance thei’ewith. He does not point out in what view of the testimony a fraud may be found, nor does he at all pass upon the sufficiency of the plaintiff’s testimony to establish a fraud, accepting it ail as absolute verity. He was practically asked to do this by the defendant’s first and fourth points, but responded to them by simply leaving to the jury generally the question whether the agreement was obtained by fraud. This leads us to consider the effect which may be legally attached to the plaintiff’s testimony, upon the theory of its conceded truthfulness. Prior to the date of the receipt of August 21st 1877, Warfflein had, by letters of June 13th and July 4th 1877, offered to sell to Meylert the land in question, ata fixed price of $1,400. In neither of these letters, nor in the paper of August 21st, was anything said about leaving the timber stand till the purchase money was paid ; in fact, the subject of timber was not even alluded to. On the trial, the plaintiff, under objection and exception, testified that, when the paper of August 21st was executed, he told Meylert he would keep his oiler as regards price, but the timber must not be cut off, and that must be put in the bond and mortgage ; otherwise he would not sell it; that Meylert said he would give a bond and mortgage that no timber would be cut off; or if he sold it, he would give full satisfaction, to which plaintiff replied, “ Then it is all right; you shall have it.” The receipt was then written and signed. When the train left, plaintiff-said: “ Mr. Meylert, don’t forget to put in the bond and mortgage about the timber.” Mr. Meylert said “ No.” Subsequently, Meylert sent to the plaintiff a deed for him to execute, and an executed bond and mortgage, which were returned because the latter did not contain the promised provision in regard to' the timber. The foregoing is the full substance of the plaintiff’s ¶ [526] testimony on this subject. It was flatly denied by Meylert, who testified that nothing was said about the timber. The credibility of the witnesses was for the jury, but was the plaintiff’s testimony sufficient to defeat the written agreement ? Of course, under this evidence it cannot be said there was any actual fraud used in obtaining the plaintiff’s signature. There was no misrepresentation or deceit. The defendant, Meylert, was asked to put in the bond and mortgage a provision that the timber should not be cut till the purchase money .was paid. lie promised to do so, but did not keep his promise. What he was to do was to be done in the future. The provision wras not to be included in the agreement of sale. It. was not to be a part of that instrument, and, therefore it was not omitted from it. There was neither fraud, accident, nor mistake in leaving it out of the agreement. The plaintiff chose to sign the paper as it was, without requiring any stipulation in regard to the timber to be inserted either in the agreement of sale or in the deed for the property. He was satisfied with a promise that it should be contained in a mortgage to be subsequently given by Meylert to himself for the purchase money. When he signed the agreement he obtained all that he asked, to wit: a promise. It is true the promise was not performed, and, no doubt, the plaintiff was disappointed in his expectation. But the same would be true of an unperformed promise to pay the purchase money at a definite time in the future, yet that would be no reason for avoiding an absolute agreement for the sale of land. The plaintiff does not say that he was inveigled into signing the agreement by means of the promise. He simply says lie did sign when the promise was made. The case is not so strong as Martin v. Berens, 11 P. F. S. 459. There the affidavit of defence alleged, that before and after the time of the making of the lease in question, “ the plaintiff agreed with the defendant as part of the said lease and agreement,” that there should be no liability for rent in case the premises were burnt during the term. Tet this was held not sufficient to defeat the clear terms of the written lease. It is not enough that there are parol stipulations contradictory of a written agreement, in order to change its legal effect. There must be fraud, accident or mistake, and the evidence of either must be clear, precise and indubitable. We have gone very far in permitting parol contemporaneous evidence to defeat written instruments. To go further would be to practically abrogate the rule. The distinctions are fully and clearly set forth in the opinion of Mr. Justice Williams, in the case of Martin v. Berens, supra, and as there stated, they meet with our approval. He sums up the subject in the following terse and effective words, to which we agree : “ Where parties without any fraud or mistake have deliberately [527] put their engagements in writing, the law declares the writing to be not only the best but the only evidence of their agreement, and we are not disposed to relax the rule. It has been found to be a wholesome one, and now that parties are allowed to testify in their own behalf, the necessity of adhering strictly to it is all the more imperative.” We cannot agree that it is proper to throw the whole case into the jury-box on the ground of fraud, simply because one of two parties to a written contract testifies that there were parol stipulations contradictory to the terms of the writing, agreed to at the same time. There must be evidence of fraud other than that which may be-derived from the mere difference in the parol and written terms. We can find no such evidence in the present case, and we are, therefore, of opinion that the learned court below was in error in leaving the question of fraud to the jury. Upon the views here expressed, the sixth and seventh assignments of error are sustained, and on them the case is reversed. As neither the narr. originally filed, nor the amended narr. is printed, we cannot lcnow anything of the merits of the first assignment. The second assignment is not sustained, nor is the third, for the reason that the court could not know whether the testimony would come up to the full terms of the offer of proof. The offer Avas to prove that a fraudulent advantage was taken of the plaintiff in procuring his signature to the agreement, and that it Avas expressly agreed that the reservation of the timber was to be contained in the receipt. There was no such proof, but that could be only discovered after the testimony was in. There is no merit in the fourth assignment, nor in the fifth. It was clearly proper to show that Warfflein had not received the purchase money, since if he had he would have received the full consideration of the agreement, and Avould have had no cause of action. The eighth, tenth and eleventh assignments are not sustained, because there was evidence of the matters complained of in them. As to the ninth assignment, the sub-' stance of the defendant’s fourth point was affirmed, and the remainder of the answer related only to the credibility of witnesses, which, of course, was for the jury. The last clause of the point is not correctly expressed. It Avould be true if the parties were equally credible, and there Avere no other circumstances affecting the testimony of either, but these are important qualifications. Judgment reversed.