Oliver ex rel. Rowland v. Oliver

The opinion of the court was delivered by Rogers, J. It is, doubtless, a general principle of law, that parol evidence shall not be admitted to destroy, control, add to, or alter a written instrument, but the exceptions to the rule are equally well settled. Ever since the case, of Hurst v. Kirkbride, cited in 1 Binn. 616, it has been the practice to receive parol evidence of [144] what passed at the time of the execution of deeds, or at and before the execution. When the fairness of the transaction is impeached, it is immaterial whether the party intended a fraud, at the time of the contract, or whether the fraud consists in the fraudulent use of the instrument. Hurst v. Kirkbride; Hultz v. Wright, 16 Serg. & Rawle, 345; Lyon v. Huntingdon Bank, 14 Serg. & Rawle, 283; Thomson v. White, 1 Dall. 424, are of this description. In Thomson v. White the fraud consisted in Lawrence Saltar obtaining a conveyance of his wife’s estate under a solemn promise to make a settlement, which he afterwards neglected to do. It has never been doubted that he entered into the contract with good faith. In his last sickness, he expressed uneasiness at leaving no will, because as had always been supposed, he thereby intended to comply with his promise. The fraud consisted in the fraudulent use which was attempted to be made of the deed, in the exclusion under the general rule of law, of Mary Thomson, the sister of Mr. Saltar, and to whom Lawrence Saltar promised to assure the property. “As. to fraud,” says Justice Tod, who delivered the opinion of the court, in Hultz v. Wright, “ it is not supposed to be necessary to have proof express, that a writing has been obtained fraudulently, in order to admit parol evidence against it, on that score; but parol evidence may be admitted to resist the fraudulent use of a writing in the obtaining of which no fraud can be made to appear.” That was a case where, in debt for rent, parol evidence was admitted to shew, that in máking a lease for nine years, rendering rent, it was understood, arid agreed by all parties, that for the last nine months, no rent should be payable. So also in an action on a single bill, the defendant, Under the plea of payment, is permitted to prove, that the bill was taken subject to a parol agreement, made long before its date. Lyon v. Huntingdon Bank, 14 Serg. & Rawle, 283. In Robinson v. Eldridge, 10 Serg. & Rawle, 142, as well as in (he case just cited, the defence consisted of a number of facts, which took place at different times, and which all tended to make one whole. It is difficult to discover any difference, between,the evidence offered, and the evidence which was received in Campbell v. M'Clenachan, 6 Serg. & Rawle, 172. Parol evidence was given of what passed between the parties, at, and immediately before the execution, when the plaintiff was induced to execute the articles of agreement, by the defendant’s promises. The case of Campbell v. M'Clenachan, was an action on the case, on a parol contract, in which the defendant promised the plaintiff, to permit him to take as much timber from the land purchased by the defendant from the plaintiff, as would be sufficient to build a boat to go down the Ohio. The same defence, as has been urged here, was then taken, but without avail. As is justly observed, to refuse performance of a verbal promise, after having made use of it, to get the plaintiff’s signature to the agreement, is a trick, of which the law. will not permit the defendant to avail himself. If we are to take what the plaintiff offers to prove to be true, what are we to think of the defendants’ [145] conduct. Surely every person must see they are attempting to avail themselves of the legal advantage, at the expense of every principle of honour and common honesty. It may be a difficult matter in some cases, to prevent the fraudulent use of an instrument, except through the medium of parol evidence. For the same principle I also cite, 1 Ld. Raym. 464; Christ v. Diffenbach, 1 Serg. & Rawle, 464; Lessee of Dinkle v. Marshall, 3 Binn. 587. I do not feel myself at liberty to reason on the policy of the rule, or the exceptions to it. It is sufficient for me, that the point has been settled by a train of authorities, which it is now too late to overturn. Nor is this case in opposition to Heagy v. Umberger, 10 Serg. & Rawle, 339. There the plaintiff sold to the defendant a horse, in consideration of which he received from him an assignment of a single bill, expressly to be taken at his own risk. The evidence was in direct opposition to the writing, and fraud was not alleged. Had there been fraud, a different case would have been presented, for fraud forms an exception to all rules. It is to prevent fraud, and the injustice which would arise from mistake, that Courts of Equity have relaxed the general rule. Fraud, accident, and mistake, are the great heads of equity jurisdiction, and without the power to receive parol evidence, it is not perceived how, in a great majority of cases, equity could administer relief. Where they have a court of equity, no evil has been felt from this power, and in Pennsylvania, where equity is administered by the court, through the medium of the jury, none will arise under the control which the court must necessarily exercise over cases of this kind. In the Lessee of Dinkle v. Marshall, parol evidence was admitted in contradiction of the deed, expressly on the ground of fraud. It is no answer to say, that the parol evidence is in opposition to the deed, for where there is fraud, or the party attempts to make a fraudulent use of an instrument, contrary to his contract, parol evidence is admitted to prevent injustice. In all cases of fraud, or plain mistake in a writing, as equity will relieve on parol proof, so will our courts through the medium of a jury. The cases already cited also shew, that relief has been given in this form of action, and that it is unnecessary to resort to action of deceit. Judgment reversed, and a venire facias de novo awarded.