Neville v. Kretzsckmar

Opinion by Mr. Justice Schaffer, John J. Neville, appellant’s decedent, was the owner of fifty shares of the capital stock of the Thomas P. Skelly Bolt Company; he entered into an agreement, in writing, to sell it to the defendant, Arthur Kretzschmar. The agreement provided, as part of the consideration for the purchase, that Kretzschmar should give to Neville a third mortgage for $2,500 on a property which he, Kretzschmar, owned. The mortgage and the rest of the purchase price of the stock were delivered to Neville, and the stock to Kretzschmar. The agreement, after setting forth that the mortgage was part of the consideration, provided “Recourse on bond with mortgage to be had against mortgaged premises only.” Foreclosure proceedings were instituted on a prior mortgage, and, after notice to Neville, who did not pro [224] tect himself at the sale, the property was sold by the . sheriff, the $2,500 mortgage being thus divested. Neville died, letters testamentary were granted to his wife, the appellant, and she commenced an action of assumpsit against Kretzschmar, in which she alleged, after reciting the written agreement between him and her husband, that at the time of it's execution Kretzschmar promised he would pay the mortgage to Neville. On the trial, counsel for appellant made an offer to prove by Mrs. Neville that, on the date of the agreement, immediately prior to and at the time of the execution of the discharged mortgage, defendant had promised her decedent he would pay off this mortgage of $2,500 within its term of three years, and, on the faith of this promise, her husband was induced to sign the agreement. The trial judge refused to receive the testimony, on the ground that it was in contradiction of the writing; and, there being no further testimony submitted, gave binding instructions for defendant. From this disposition of the case plaintiff has appealed. The decision of the court below was correct. Without allegation or offer of proof to show that the oral promise proposed to be proven, — and it by but a single witness,— had been omitted from the written agreement by fraud, accident or mistake, plaintiff by her unsupported oath sought to set aside its explicit terms, which provided that recourse on the bond should be had against the mortgaged premises only, the effect of which of course was to exempt the defendant from personal liability. It would be useless to reduce contracts to writing, if that which is written down to evidence them, and make them certain, could be erased by testimony such as offered here. In the absence of an allegation that something was omitted from a written instrument by fraud, accident or mistake, or a contemporaneous parol promise was made to induce its execution, it cannot be overthrown or modified by oral evidence: Wodock v. Robinson, 148 Pa. 503; Krueger v. Nicola, 205 Pa. 38; Gen [225] eral Motors Truck Co. v. Phila. Paving Co., 248 Pa. 499; Rutk-Hastings Glass Tube Co. v. Slattery, 266 Pa. 288. “When a contract bas been reduced to writing, it is understood as expressing tbe final conclusion of tbe contracting parties, and fully accepted as merging all prior negotiations and understandings, whether agreeing or inconsistent with it”: Rearick v. Rearick, 15 Pa. 66; Lowry v. Roy, 238 Pa. 9. Tbe assignments of error are overruled and tbe judgment is affirmed.