Wallace v. Baker

Tilghman C. J. This case arises on a writ of error to the court of common pleas of the county of Philadelphia. Annexed to the record is a bill of exceptions, stating several exceptions to the opinion of the court. The principal and indeed the only one of any weight, is that to the rejection of the parol testimony offered by the defendant, in contradiction to the writing on which the plaintiff founded his action. There have been many decisions in this court in favour of the admission of parol evidence, even in contradiction to written instruments. These decisions have been chiefly in cases offraud and of trust. I think the law will be found accurately stated in the Lessee of Thompson and wife v. White, 1 Dall. 424. where C. J. M'Kean delivered the opinion of the court after full consideration. The leading case on this subject is that of Hurst’s Lessee v. Kirkbride, tried at nisi prius in Bucks county 24th of March 1773. As that case has been often cited and relied on by counsel and recognised by the court, and is not in print, I have procured a state of it from the notes of C. J. Chew, who was counsel for Kirkbride. The plaintiff Timothy Hurst claimed the manor of Pennsbury under a deed from Robert Edward Fell. This deed (dated 10th of May 1770, and made in pursuance of and in exact conformity to articles of agreement dated 10th of April 1770) after describing a large lot of ground on South street in the city of Philadelphia, contained general expressions, comprehending all the grantor’s lands in Pennsylvania, and elsewhere in America. The counsel for the defendant offered to prove by parol testimony, that it was not the intent of the parties to convey the manor of Pennsbury, and that the sale of the manor was excepted at the time of executing the articles and deed. The court, after argument, permitted evidence to be given by William Parr the conveyancer who drew the writings, of conversations which he had with the parties when he received his instructions for drawing the writings, and while he was drawing them; and also that immediately after Fell had signed and sealed the writings, before he rose from his chair, and before the witnesses had signed their names, he mentioned the manor of Pennsbury to Hurst, who answered, “ As to the manor, sir, I [617] “ will treat with you about it another time.” The truth was,that' Fell had not a good title to the manor, and had afterwards sold it to Kirkbride, not in his own right, but as attorney for the real owners in England. Now it was a gross fraud in Hurst, after all that had passed, to set up a claim to the manor, under the deed from Fell. But neither that case, nor any other which has been cited for the plaintiff in error will support the exception to the opinion of the court of common pleas. Let us examine the evidence which was rejected. The defendant below offered to prove u that it was never intended by him, that he “ should pay or deliver to the plaintiffs any money whatever, “ but the surplus, if any there should be, beyond the sum of “ 6000 dolls., expected to arise from the sale of the house.” But it does not appear that such intention was ever made known to the plaintiffs, and therefore it ought not to affect them. The defendant offered to prove further “ the declara- “ tions of Andrew Smith, at whose instance and request, and “ in whose behalf the defendant entered into the said writing, “ and the declarations and understandings of the. said Andrexv “ Smith and of the defendant, before he signed the said writing, “ although the plaintiffs were not present at the time of making “ the said declarations.” The bill of exceptions is defective in not stating what these declarations and understandings were. The court should be informed of their nature. But whatever they might have been, they were improper evidence, because the party to be affected by them was absent, nor can we presume that he ever heard of them. It is not stated that Andrew Smith was in any manner the agent of the plaintiffs; if he had been, the case would have been very different. The matter then is simply this. The defendant executes a writing, on the faith of which the plaintiffs part with valuable property, and after-wards wants to prove that before he signed it, he had intentions and made declarations tending to render it of no value, which were never communicated to the plaintiffs. Under these circumstances is there any fraud in insisting on an exact fulfilment of the written engagement? Or is there any justice in permitting the plaintiffs to be affected by the evidence of matters, unknown to them when they made their contract? It is very clear that this testimony w'as properly rejected. The second exception is, that the plaintiffs did not lay in their declaration, a special request to perform the guarantee, [618] nor did they prove such request. I think the request is sufficiently set forth in the declaration; and as to the proof, the judge submitted the case to the jury on the evidence, so that there could be no error in law, in that. The last exception is, that there was no consideration for the •defendant’s assumption. This exception must have been taken in a hurry; it is expressly laid in the declaration, that in consideration of the defendant’s guarantee, the plaintiffs sold and delivered to Berrett and Smith, goods to a large amount. My opinion upon the whole is, that the judgment of the court of common pleas be affirmed. Yeates J. concurred. Brackenridge J. was holding a court of nisi prius, during the argument of this cause, and gave no opinion. Judgment affirmed. END OF MARCH TERM, 1809.