Bown v. Morange ex rel. Hall

Mr. Justice Stebkett delivered the opinion of the court January 5th, 1885. The question involved in the first .four specifications of error is whether the offers of evidence therein recited were rightly rejected. In substance, the offers were to prove that at the time the judgment, which forms the basis of this action, was confessed, it was understood and agreed by and between [74] plaintiff and defendant that the confession or judgment should not prejudice the latter in obtaining his discharge in bankruptcy, for which an application was then pending in the proper court; that if, in due course, he procured his discharge, plaintiff should stand upon the same footing as defendant’s other creditors, and the judgment should not be enforced against him, or, as it is expressed in the' third offer, the discharge should operate as a satisfaction of the judgment; and that it was upon the faith of the agreement, of which the foregoing is the substance, that the judgment was confessed. In addition thereto, other matters of fact, more or less intimately connected with the compromise and confession of judgment, are embraced in the respective offers, but special reference to them is unnecessary. The judgment was confessed after defendant was adjudicated a bankrupt .and before he obtained his discharge, for a provable debt contracted befo're commencement of proceedings in bankruptcy. The mortgage' given to secure the debt had been foreclosed and the property sold to the equitable plaintiff for $1,150, but exceptions to the sheriff’s sale were pending when suit for residue of the debt was brought on the bond. Shortly afterwards a compromise was effected, signed by attorneys of the parties respectively and filed of record in the case, as follows, to wit: “December 7th, 1876, per writing filed this case compromised on the following conditions: 1st. That plaintiff allows a credit on the bond sued on, of $6,045.45, and defendant confesses judgment to plaintiff for the sum of six thousand six hundred and forty-six dollars and nine cents, ($6,646.09) and defendant in consideration of the above credit, (said credit being in excess of plaintiff’s bid at sheriff’s sale of the property of defendant sold to plaintiff on levari facias, No. 260, July Term, 1876) hereby withdraws all objections to said sheriff’s sale, and furthermore hereby ratifies and confirms said sheriff’s sale, and the title thus by said plaintiff acquired to the property bought by plaintiff at said sheriff’s sale.” By this compromise defendant obtained a concession or credit of over $6,000, in addition to the amount realized by sale of the mortgaged premises, and in consideration thereof he withdrew his exceptions -to the sheriff’s sale and confessed judgment absolutely and unconditionally for the residue, $6,646.09. There is nothing on the record restricting in any way the right of plaintiff to revive the judgment or have execution thereof. This is conceded by defendant; but he alleges the judgment was confessed on the faith of plaintiff’s assurance and verbal agreement that in the event of his obtaining, in due form, his discharge as a bankrupt, the judgment should not be enforced against him. In view of the fact that the [75] conditions of the compromise and confession of judgment were reduced to writing and made matter of record, it is very remarkable that a provision so important to the defendant should have been omitted from the writing prepared and signed by counsel; but, unreasonable and incredible as defendant’s allegations as to the verbal agreement in question may appear, he is entitled under our decisions to establish them if he can by competent and satisfactory evidence. No principle has been better settled by a long line of decisions than that parol evidence is admissible to show a verbal contemporaneous agreement which induced the execution of a written obligation, though it may have the effect of varying or changing the terms of the written contract: Miller v. Henderson, 10 S. & R. 290; Greenawalt v. Kohne, 4 Norris 369; Barclay v. Wainwright, 5 Id. 191; Whitney v. Shippen, 8 Id. 22; Hoopes v. Beale, 9 Id. 82; Keough v. Leslie, 11 Id. 424; Hartley’s Appeal, 7 Out. 23; Juniata Building Association v. Hetzel, Id. 507. The purpose of the offers under consideration was not to assail the validity of the judgment as originally confessed, or to introduce any matter of defence that may have existed prior thereto, but to show that by reason of what has occurred since, viz.: defendant’s discharge in bankruptcy, the plaintiff is not entitled, according to the terms of his alleged agreement, to have execution of the judgment.' In this-respect the case is similar in principle to Hartzell v. Reiss, 1 Binney 289, in which it was held that under the plea of payment to a scire facias to revive a judgment, the defendant might show that when he executed the bond on which the judgment was confessed the plaintiff promised verbally to cancel it upon an event which occurred after the judgment was entered. We think the testimony offered by the defendant should have been received, and if the evidence of the alleged agreement proved to be sufficiently clear and precise to justify its submission to the jury the question should have been left to them under proper instructions. In refusing to charge as requested in defendant’s point, the learned judge followed the ruling of this court in Wise’s Appeal, 3 Out. 193, in which it was held that in an action on a judgment obtained after the defendant therein was adjudicated a bankrupt, and before his discharge, upon a debt provable under the bankrupt law, the original debt is merged in the. judgment, and the subsequently granted certificate of discharge is no defence thereto. The judgment on which this scire facias issued possesses all those distinctive features. It was confessed by defendant, after his adjudication and before his discharge as a bankrupt, for a provable debt contracted [76] prior to commencement of the bankruptcy proceedings. It is clearly within the rule, and hence the fifth assignment of error is not sustained. If defendant had succeeded in introducing testimony tending to prove the allegations of fact embodied in the offers rejected by the court, there might have been a question of fact for the consideration of the jury; but as the case stood there was no error in charging as complained of in the sixth specification. Judgment reversed, and a venire facias de novo awarded.