Yeager v. Cassidy

Per Curiam, This was an action of replevin for a crop of wheat. The plaintiff claimed it by virtue of the provisions of his lease from Mary Yeager, the owner of the land. The defendant claimed it as the administrator of William Cassidy, who obtained title to the land from A. L. Herr who had bought the same at sheriff’s sale on November 14, 1890, under an execution against Mary Yeager. The facts, out of which the main questions to be decided on this appeal arose, are so clearly stated in the opinion of the learned judge of the court below, refusing a new trial, that we adopt his statement without substantial change. He says: “ During the progress of the trial the plaintiff produced (and the defendant subsequently offered in evidence) a written lease, dated March 24, 1896, made between Mary Yeager, lessor, and Phares Yeager, her son, the plaintiff, as lessee, whereby she leased to her said son her farm in Colerain township for a money rent of $250. Under tins lease as it stood when offered hi evidence Mary Yeager was to have the crop of wheat then in the ground and Phares Yeager was to have the way-going crop or the crop he himself should put in. But this lease showed certain alterations on its face, and it therefore became incumbent on the plaintiff to explain them. Mrs. Yeager testified that originally the lease was drawn so that her son was to have the crop in the ground, and he was to leave in the ground as much as he found, but .that about April, 1896, and long before the execution issued against her, they together agreed that a change should be made so that she might receive the crop in the ground and he should take the way-going crop, and that this was thereupon by them at once put in the lease as it now appears. The defendant claims that this was an alteration or contradiction of a written paper which required the testimony of two witnesses to sustain it, otherwise the paper must remain as it was first written.” The refusal so to charge is the subject-of the first two assignments of error. [239] 1. It must be observed that this was not the case of an attempt to reform or set aside a written instrument by parol evidence of what took place at, or before, its execution, but of a change in one of the stipulations of a contract by a subsequent agreement of the parties. Cases of the former class involve equitable principles, the application of which must necessarily be the same no matter whether the proceeding be in a court of equity or in a common-law court exercising equitable powers. Cases of the latter class involve simply the common-law right of parties to change their contracts, and are governed by the rules of law and evidence that govern the making and proof of contracts. The cases cited by the defendant’s counsel apply to cases of the former, not the latter, class. If these parties had put their subsequent agreement in a separate writing it could not be contended that the execution of the paper must be proved by two witnesses. Instead of doing that they evidenced their agreement by the erasure of some words and the interlineation of others in the original agreement. The new agreement was supported by a sufficient consideration, and its validity cannot be questioned. See Gallagher v. Stern, 8 Pa. Superior Ct. 628. The mode of evidencing it may not be a desirable one, but it was not illegal. As the learned judge well says, if the parties to this lease at a time when no one else was interested, saw fit to change their original agreement, and actually did so in writing in the lease which they had previously executed, the defendant had no right to question the validity of their act. Of course, the facts involved in this proposition, and the bona fides of the transaction were to be determined by the jury, but it was not error to refuse to instruct them that they must be established by the testimony of two witnesses. 2. As no exception was taken to the admission of the testimony of Mary Yeager, the third assignment must be dismissed.. We remark, however, that the cases cited in support o£ it— Lessee of Packer v. Gonsalus, 1 S. & R. 526, and Hoffman v. Lee, 3 W. 352 — relate to the admissibility of declarations of a vendor made after he has parted with his title, not to his competency as a witness. 3. The relevancy of the fact alluded to in the question put to A. L. Herr on cross-examination (fourth assignment) is not apparent, and the extent to which a party may go in cross240 examination as to irrelevant matters for tbe purpose of testing tbe accuracy of recollection, or tbe bias, of a witness, is one of -those matters wbicb, in a degree, are discretionary with the trial judge: Clark v. Trinity Church, 5 W. & S. 266. Other cases might be cited, but it is unnecessary. There is no such manifest error in the ruling complained of as would justify us in reversing this judgment. The case was fairly submitted to the jury and the evidence fully warranted their verdict. There is no valid reason for setting it aside. All the assignments of error are overruled, and the judgment is affirmed.