M'Meen v. Owen

M’Kean C. J. The general rule of law certainly is, that a deed, will, or other written instrument, must be expounded by its own words. But there are exceptions to this rule in the books, as where parol evidence is brought to ascertain a person or thing, or to rebut an equity, or where a matter has been omitted to be inserted in the writing, either by fraud or through mistake. We will not venture to enumerate all the *4 891 cases> * wherein to do essential and substantial justice, -* the court may find themselves constrained to receive such unwritten testimony. In the case of Hurst’s lessee v. Kirkbride and Riché, tried at the Court of Nisi Prius for Bucks county, parol evidence was admitted to shew, that it was not the intention of major Fell to include Pennsbury manor in a deed for all his lands in Pennsylvania, from what passed before and at the time of executing the articles of agreement. This determination was founded on the case of Harvey v. Harvey, cited on the argument. Though it goes much further than the cases before us, it has been generally approved of. In many other cases since the declaration of independence, parol evidence has been received to explain, and in some sort to vary, what appeared on the face of the writings. Such was the resolution in Cochran’s executors v. Cochran’s executors, tried at York Nisi Prius, May 1789, and heretofore cited in this cause, and many others, which I will not now recapitulate. In Field et al. v. Biddle, it was equivocal in some degree on the mere words of'the indenture, what was the real intention of the parties as to the bond, in case Oxley and Hancock should not send in their ratification of the agreement within six months. The writing did not go so far as to enumerate that case. Indeed, it could scarcely be presumed, that Mr. Biddle would have given his bond for ioool. sterling, unless on the condition, that Mr. Collins, his son-in-law, should be discharged from the remainder of Oxley and Hancock’s demand. But why should we leave a matter to presumption or conjecture, when the true intention and meaning of the contracting parties can be ascertained with absolute precision, by unwritten evidence, not within the mischiefs which the general rule intended to obviate, namely, pre139 vari cation and misrepresentation? Besides, it appears to us, that the nominal plaintiffs were acting as attornies in fact to Oxley and Hancock, under qualified powers, and that they either could not, or would not give discharges, according to the agreement, without being authorized thereto by their constitutents. What good reason can be assigned, why we should not receive oral testimony, to prove that this bond was delivered as an escrow to Field, and lodged with him, to take effect only on Oxley’s and Hancock’s transmitting their ratification of the composition within the stipulated period? Judgment pro def. in Field et al. v. Biddle. Judgment pro quer. in M’Meen v. Owen. Cited in xo S. & R., 291, 342; 6 Wh., 305. As to M’Meen v. Owen, there was an ambiguity apparent on the face of the covenant. 'The kind of money is not therein described, which was agreed to be paid. Various species of money were then in circulation, and if parol evidence is not to be resorted to, in order to discover the real intentions of the * contracting parties, justice must necessarily be administered at random. [*140 Shippen and Yeates Justices, concurred. Bradford J. I conceive myself bound by the determination in Hurst’s lessee v. Kirkbride and Riché, and now look on it as the settled law of Pennsylvania. That resolution goes further than the case of Harvey v. Harvey, and I confess, the principles on which it was decided, are not altogether satisfactory to my mind. That case alone has, however, determined my opinion, and I concur with the rest of the court.