Dickson v. Hartman Manufacturing Co.

Opinion by Mr. Justice Green, The plaintiff’s statement bases his claim to recover in this case upon the letter of July 30, 1894, marked, “ Exhibit A,” and annexed to and made part of the statement. In stating his contract with the defendant he describes the contents of the letter, and adds, “ which agreement was embodied in a letter addressed to said plaintiff by said H. W. Hartman, dated July 30, 1894, a true and correct copy of which is hereto annexed, marked ‘ Exhibit A,’ and made part hereof as fully as though set out at length herein. Second, said plaintiff accepted the proposition upon the conditions stated in the letter marked ‘ Exhibit A,’ and the further condition that the plaintiff should have a permanent situation, .... and that the said Hartman [347] then andthere agreed that the said plaintiff should have a permanent situation provided he should give satisfaction.” The plaintiff then avers in the statement that he entered the service of the defendant and continued therein to their satisfaction until the first day of November, 1894, when he was discharged without any fault upon his part, and he claims to recover for eight months’ salary at $208.34 per month — $1,666.72, three per cent of the estimated profits of the Hartman Co. — “ $5,400 and two per cent of the estimated profits of the Ellwood Co. — $2,160, making in all $9,226.72. All of these items are based upon a claim that the plaintiff was entitled to recover upon an entire contract for at least one whole year, and upon the allegation that he was discharged without cause at the end of a few months, leaving eight months of the year unpaid for. That this statement of claim was founded upon the written letter of July 30, 1894, is not, and cannot be, disputed. But the letter says nothing about employment for a year, and there is therefore an added assertion in the statement, that the plaintiff accepted the proposition upon the conditions stated in the letter, and “ the further condition that the plaintiff should have a permanent situation.” As this was in parol the plaintiff undertook, on the trial, to establish this part of his allegation by his own verbal testimony. His offers of proof were rejected chiefly because they only alleged a verbal condition that he should have a permanent situation, and this was too indefinite to support a specific claim for one year, and there was nothing in the plaintiff’s statement except a claim that he was to have a permanent situation. Thereupon the plaintiff asked leave to amend his statement by saying that an agreement was entered into “ partly in writing, to wit, ‘ Exhibit A,’ attached to plaintiff’s statement, and partly by parol, by which the plaintiff was employed by the defendant company for a period of a year, at an annual salary of $2,500, payable in monthly instalments,” and the percentage of the net profits of the Hartman Company as previously stated. The amendment was allowed, and then the plaintiff proceeded to testify that he had said to Mr. Hartman that he would be willing “to chance it for a year,” and then Hartman said, “ If you are willing to chance it for a year all right.” While one of the objections was thus removed to the admission of this testimony, it was the least important of all, and does not at all reach to the [348] radical objection that the written contract was thus permitted to be altered-and contradicted by verbal testimony of what took place, a few days, as the witness says, before the letter was written. He says “ the result was that when we came to Pitts-burg I went to our office, and then in a few days after that this letter was written.” Without making any comments upon the contradiction between the plaintiff’s statement of his cause of action, verified by his oath, and his verbal testimony, and the readiness with which he changed his testimony so as to meet the objections of the opposing counsel and the court, it is enough to know that his verbal testimony was most positively and emphatically contradicted and denied by Mr. Hartman, and hence the case presents the ordinary question of the sufficiency of the testimony to alter the contract, where there is the oath of one witness only on one side, and the writing and the oath of another witness on the other side. The contention that the contract was partly in writing and partly in parol, does not help the case. The contract was complete without the parol part, and the plaintiff says it was accepted, and he founds his claim upon its terms. But he seeks to add to it by declaring that he accepted it with an added verbal condition. What is this but the alteration of the instrument? If he made an additional condition it was his duty to have it incorporated into the writing. Failing in this it was at the very least necessary for him to show that the added condition was omitted from the writing by mistake, fraud or accident. But there is nothing of that kind in the plaintiff’s testimony. According to him he accepted the written contract with a verbal addition contradicting it. He did not allege that there was any promise to observe the verbal condition, although it was hot in the writing, and hence cannot, and does not, now allege, that he accepted the writing upon the faith of such a promise. His testimony is such that it does not bring the case within any of the exceptions to the rule prohibiting parol evidence to contradict written instruments. The writing is complete in itself and therefore may not be contradicted by adding new parol terms to it. What was said by Chief Justice Fullee in Seitz v. Brewer’s Refrigerating Oo., 141 U. S. 510, is quite in point in this connection, to wit, “ Whether the written contract fully expressed the terms of the agreement was a question for the court, and since it was in this [349] instance complete and perfect on its face, without ambiguity, and embracing the whole subject-matter, it obviously could not be determined to be less comprehensive than it was. And this, conclusion is unaffected by the fact that it did not allude to the, capacity of the particular machine. To hold that mere silence opened the door to parol evidezrce in that regard would be to, beg the whole question.” In Naumberg v. Young, 44 N. J. Law, 31, the following language of the opinion is especially apposite. “ If the written contract purports to contain the whole agreement, and it is not apparent from the writing itself that anything is left out to be, supplied by extrinsic evidence, parol evidence is inadmissible. If the instrument shows that it was meant to contain the whole bargain between the parties, no extrinsic evidence shall be admitted to introduce a term which does not appear there.” In Van Voorhis v. Rea Bros., 153 Pa. 19, we said, “The several writings offered in evidence by the plaintiff, and received without objection, all relate to the same subject, and are evidence of successive steps in one transaction; taken together they constitute a contract of bailment. . . . The defendants not denying the writings or alleging fraud, accident or mistake, undertook to show by one of their number that the contract was something different from that which was written. This they could not do by the uncorroborated testimony of one witness, flatly contradicted as he was by the plaintiff, or evep uncontradicted.” In Wyckoff v. Ferree, 168 Pa. 261, it was said in the opinion, “A compliance with a request in 1892 was made evidence upon which to base a right in 1893. There had been no omission through fraud, accident or mistake; there was no ambiguity in the language of the contract; there had been established no business usage which threw light upon the intention of the parties, and there was nothing to explain. The alleged parol agreement was at variance with the written contract. It was supported by the testimony of one witness, and denied by that of another. The previous modification, claimed as a corroborating fact, was based upon a request which negatived any claim of right, and its weight would seem to be with the defendant. We are of opinion that this evidence was not sufficient to sustain a finding by the jury which changed or modified the [350] written agreement between the parties, and binding instructions should have been given as requested.” The foregoing decision is in precise analogy with the case at bar. There the defendant who was engaged in the business of street railway advertising was authorized by the plaintiff’s writing to insert the plaintiff’s advertising card in certain cars in a designated space, at a fixed price. While the contract was running the plaintiffs desired to withdraw their cards and substitute the cards of other persons in their place, having sublet the space to those persons. This was refused and, in an action to recover damages for breach of contract, the plaintiffs claimed that the written agreement was made on the faith of a parol stipulation that a substitution of advertisements of other persons would be allowed. This was testified to by one witness and denied by the defendants. The court below admitted the testimony, and a verdict and judgment being entered for the plaintiff we reversed the judgment without a venire. We held that the evidence of the parol stipulation was not sufficient to sustain a finding by the jury which changed or modified the written agreement. Just so here. The plaintiff claims that there was a parol stipulation which was not in the contract, and testified to it himself, and his testimony on that subject was flatly contradicted by the defendant. In these circumstances the written contract cannot be changed by such testimony. The assignments of error are sustained. Judgment reversed.