Thudium v. Yost

OPINION by Me. Justice Sterrett: It clearly appears from the evidence recited in the specification of error that pending the negotiations, between the parties, for the lease in suit, plaintiff below was fully informed that the lease of the tenant then in possession would not expire until April 1, 1887; that possession of the premises, before that time,, could not be obtained by him or anyone else, without buying the furniture and unexpired term of the tenant, and that defendant would not lease the premises for a term commencing April 1, 1886, except on the condition that such purchase was made by the new lessee, and carried out in good faith; that on the condition above stated, and with the distinct understanding that plaintiff below had purchased the furniture and outstanding term of Mrs. Wilder, and made a satisfactory arrangement with her for possession on or before April 1, 1886, defendant was induced to sign the lease in controversy; that while plaintiff below had agreed to buy the furniture and interest of Mrs. Wilder, he had not in fact consummated the purchase, and after-wards refused to carry out, in good faith, his agreement with [317] ber; and for that reason she refused to surrender possession of the premises. Without referring in detail to the testimony of Thudium himself, Mrs. Wilder, Alexander Kl'ink, and others, upon which defendant below relied, it is sufficient to say that if it had been submitted to the jury, with proper instructions, they would have been warranted in finding a state of facts substantially the same as the foregoing — facts that would have been a complete answer to plaintiff’s claim for damages for nondelivery of possession on April 1, 1886. There is no room for any doubt or difference of opinion as to the kind and degree of proof necessary to sustain a defense such as was interposed in this case. Our books are full of cases on the subject, some of the more recent of which are McGinity v. McGinity, 63 Pa. 38; Powelton Goal Co. v. McShain, 75 Pa. 238; Shughart v. Moore, 78 Pa. 469; Graver v. Scott, 80 Pa. 88; Lippincott v. Whitman, 83 Pa. 244; Greenawalt v. Kohne, 85 Pa. 369; Gallan v. Lukens, 89 Pa. 134; Phillips v. Meily, 106 Pa. 536; Spencer v. Colt, 89 Pa. 314; Brown v. Morange, 108 Pa. 69; Walker v. Prance, 112 Pa. 203, 5 Atl. 208; Thomas v. Loose, 114 Pa. 35, 6 Atl. 326. In Brown v. Morange, 108 Pa. 69, it is said: “No principle has been better settled by a long line of decisions than that parol evidence is admissible to show a verbal contemporaneous agreement which induced the execution of a written obligation, though it may have the effect of varying or changing the terms of the written contract;” or as the same idea is expressed in Walker v. France, 112 Pa. 203, 5 Atl. 208, “a written agreement may be modified, explained, reformed, or altogether set aside by parol evidence of an oral promise or undertaking, material to the subject-matter of the contract, made by one of the parties at the time of the execution of the writing and which induced the other party to put his name to it.” But, while parol evidence is admissible to establish a contemporaneous oral agreement which induced the execution of a written contract, although it may change or reform the instrument, such evidence in the language of all the cases must be “clear, precise, and indubitable.” By these words it is meant, as defined in Spencer v. Colt, 89 Pa. 314, that it shall be found that the witnesses are credible; that they distinctly remember the facts to which they testify; that they narrate the details ex [318] actly and that tbeir statements are true. Absolute certainty is out of the question. The difficulty is not so much in the principles themselves as in their application to particular cases. An examination of the evidence on which plaintiff in error relies has satisfied us that, if believed by the jury, it was quite sufficient to have warranted a verdict in his favor, and hence the learned judge erred in not submitting it to the jury. Judgment reversed and a venire facias de novo awarded.