Jones v. Backus

Mr. Justice Green delivered the opinion of the court, The first assignment is not sustained. The affidavit on appeal was made by one of the defendants, but the recognizance was for both, though signed by one and a surety. This brings the case Avithin the rulings in La Fitte v. La Fitte, 2 S. & R., 107; Hartman v. Stahl, 2 P. & W., 223 and Bonner v. Campbell, 12 Wr., 286, in all of which it was held that if one of the defendants make the affidavit required by the Act, and the recognizance be for all, the appeal Avill stand for all. The second assignment is not pressed and has no merit. Third, fourth and fifth assignments. The plaintiff by his motion for a new trial prevented any further action in the case until the disposition of that motion. There was not, and could not be, any judgment entered on the verdict until the court decided whether there should be a new trial. Hence the defendant was prevented from making the first payment directed by the jury, because the question Avhether he should make any payment was still undetermined. The motion for a new trial Avas made and rule granted on March 21st, 1885, [129] but it was not decided until December 8th, 1885. The jury fee was not paid and judgment on the verdict was not entered until December 12th, 1885. In the meantime the defendant had on December 11th, 1885, tendered to plaintiffs’ attorney the amount of the first instalment due on June 19th, under the verdict which was refused, and the next instalment did not become due until December 19th, 1885. On that day the defendant tendered what was supposed to be the full amount then due, to wit, $1,595, and this was refused, whereupon the defendant on December 21st, asked leave to pay the money into court and leave was granted on the 22d and money paid in on the 29th. In these circumstances the court below refused a writ of habere facias to the plaintiff, and this is complained of as error. It is quite clear that the defendant’was not in default in not tendering the first instalment at the time fixed for its payment by the jury. As we have already said the plaintiff by his motion for a new trial postponed the time of that payment. In a similar case, Pendleton v. Richey, 8 Cas., 58, where the plaintiff was ordered in a conditional verdict to pay the defendants for improvements by a fixed time, there was a motion for a new trial by the defendants which was undisposed of when the time for payment arrived, and the foregoing doctrine was applied. Thompson, J., said, “When the motion was dismissed judgment was directed to be entered on the verdict, and the time extended one month. This was the legal termination of the suit. There was- no judgment in the case until this time, and as the motion was made by the defendants it was they who delayed the entry of judgment which in law is the end of controversy. The plaintiff was not bound to do any thing, until judgment was entered, for non constat a new trial might be granted.” In the case Of Connolly v. Miller, 14 Norr., 513, we held that in the case of a •conditional verdict in ejectment a writ of habere facias possessionem is not of course, as in ordinary cases of judgment in ejectment, but can only be issued by leave of court, and the party asking for the same must show to the satisfaction of the court that he is justly entitled to it. It is not necessary to review the circumstances of that case nor the very lucid opinion of Mr. Justice Mercur, who stated the doctrine of the right of the court to grant or refuse the writ according to the equitable character of the facts attending the application. It is true the question was as to extending the time of payment, but the considerations which determine that question are equally applicable where the motion is directly for the granting of the writ. In the present case there was no default, because the plaintiff’s motion for a new trial excused the defendant from tendering .the first instalment at the time [130] fixed in the verdict, and the whole amount of the first and second instalments was actually tendered on the day when the second instalment matured. It is said the amount tendered was $2.71 less than the amount actually due, owing to some error in the calculation of interest, though this was not discovered until after the money was paid in. As the amount was fixed by the order of the court it can in no sense be considered as a conscious and intended dereliction by the defendant, and the maxim de minimis is clearly applicable. We think the court was entirely right in refusin'g the writ of habere facias and these assignments of error are dismissed. We do not sustain the sixth, tenth and eleventh assignments because we think the written settlement of May 13th, 1864 sufficiently describes and embraces the Crow land to justify the admission of parol evidence, to apply the description to the land. The'remaining assignments present a question of a different character and more difficult to deal with. The written agreement of 9th February 1867, stipulates for the sale by the plaintiff to the defendant Backus, of certain lands therein described, and for the payment therefor by the said defendant of the sum of five thousand dollars of which sum $3,000 were to be paid on the following first day of January, and $2,000 in two equal annual instalments from that date. There is not the least ambiguity in the language of this instrument. The defendant, was undoubtedly to pay $5,000 in money for the land to be conveyed. He now proposes to prove, and was permitted to testify, that instead of paying $5,000 he was to pay an indefinite and uncertain sum, which could only be determined, and as he says, was to be determined, in the fhture, by deducting from the $5,000 a sum which should represent the relative value of one half of the Crow property as compared with the whole value, $5,000, of all the properties sold, the Crow being one, after deducting from this relative value the amount which Backus still owed Jones for that one half. How this relative value of the Crow property was to be determined, or by whom, or when, is not stated or explained by Backus, the only witness called to prove this alleged parol contemporaneous agreement. Of course it is possible that two contracting parties might make such an agreement as this, but it is so extremely incredible that any vendor in the possession of his senses, would ever consent to part with his title in such a manner, that nothing short of the clearest, most precise, and above all, the most indubitable, testimony ought to be permitted in support of such a contract, as against a solemn written contract which contains no such feature. How, even a purchaser would [131] consent to such an arrangement is almost equally incomprehensible. For the vendor could not know how much money he was to get for his land, and the vendee would be ignorant as to the amount he was to pay. If an arrangement of so extraordinary a character was really to be made it is incredible to the last degree that the parties would not have inserted it in their written contract. Yet in the present case there is not the slightest attempt to explain this remarkable omission. The witness does not allege that it was a part of the actual agreement which was omitted by mistake, or that he was induced to sign the contract by any representation that it should be regarded as a part of the agreement, nor that there was any fraud or mistake of any kind. He was asked to explain on cross-examination, and the reasons he gives for not putting the alleged understanding in the written contract are altogether unsatisfactory. He was asked: Q. Why didn’t you and he agree on the price or on the value of it at that time ? A. It was spoken of at that time. Q. Why didn’t you and he agree on it at that time? A. The reason I gave —I told him I hadn’t my memorandum or contract with me. Q. It wasn’t necessary for juju to have your contract of 1864 to fix on the value of the Crow property? A. It was to know how much was paid on it. Q. Couldn’t you fix on the value of the Crow property? A. We didn’t try. Q. You could have fixed on it at that time without an order of court? A. It is possible that we could. Q. And then when you got the contract you could deduct what was paid and that would be the balance to put on the new contract? A. Yes, sir. Q. Why didn’t you put into your contract that you made in 1867, something about this agreement in regard to the Crow property that you have testified to ? A. We talked the matter over and Mr. Jones drew the contract and said there would be no trouble, that we could get at that at any time. He didn’t show me a copy of that contract of 1864. Q. Then you left all the main part of the contract open to the subsequent settlement? A. So far as regards the Crow property. Q. The title to the Crow property was in Mr. Jones ? A. Yes, sir. Q. You say that contract was-made at Mr. Jones’ house in 1867? A. Yes, sir. Q. There was no one present but you and him? A. I think not. I do not remember of any one.” If after such testimony as this the terms of a written' contract may be set aside, and other and different terms of a material and important character substituted in their place, the rule prohibiting parol evidence to alter the terms of written instruments should be at once stricken from our system of jurisprudence. The. case presents nothing but an attempt to [132] substitute a parol stipulation in place of a written one of an entirely different character. It can not be said it is only a mode of payment. It is the payment of a different sum and in a different manner from the amounts and the mode prescribed in the contract. By the contract the amount fixed was $5,00.0. By the parol substitute it was to be no specified sum, but it was to be much less than $5,000 and no method for its ascertainment was defined. It is' almost needless to add that the plaintiff denies most earnestly, emphatically and absolutely the whole allegation of the defendant on this subject. He says the subject was not even alluded to and no agreement of any kind was made to allow any credit on the $5,000 on account of the defendants’ interest in the Crow property. In these circumstances the case comes clearly within the rule, well established in this court, that the unsupported oath of one of the parties to an instrument is not sufficient to defeat or change it when opposed by the oath of the other party: Juniata Build. & Loan Ass. v. Hetzel, 7 Out., 507; Phillips v. Meily, 11 Id., 536. To the same effect are Ballentine v. White, 27 P. S., 27; Sower v. Weaver, 28 Id., 443. There was no other witness, and there was no corroborating circumstances supporting the defendant’s testimony in this case, and as he was contradicted both by the positive oath of the plaintiff and by the express terms of the written contract, his testimony was insufficient to change or alter the contract and the jury should have been so instructed. The judgment is reversed on the 7th, 8th, 9th, 12th, 13th, 14th, 15th and 16th assignments of error. Judgment reversed, and a venire facias de novo awarded.