VanHorn v. Munnell

[502] Opinion, Mr. Justice Mitchell : This action, being brought upon a lost writing, the terms of which are to be supplied by oral testimony, must, so far as concerns the requirements of proof, stand upon the same basis as an action upon a parol contract. For specific performance in such cases, it is indispensable to prove, by the most clear and indisputable evidence, the precise terms of the agreement: Sage v. McGuire, 4 W. & S. 228; McFarson’s App., 11 Pa. 503, 510. And this necessarily means the whole agreement. Even in the case of a writing, this court reversed a decree for specific performance and dismissed the bill, because, among other reasons, the writing was imperfect and did not contain all the terms the grantor desired: Brady’s App., 66 Pa. 277 ; and, the remedy by ejectment being an equitable action, the proof must conform to the required standard to the satisfaction of the judge, whq for this purpose sits as a chancellor. The contract in the present case rests upon the testimony of a single witness, who wrote it about twenty-three years before he was called to testify, and had not seen its contents since. He says : “ I never saw it after I wrote it, except the outside, just that once I gave it to him. I put it away, and never looked at it again. Never refreshed my memory, or pretended to, anything about it.” This, of course, bears only upon the credibility of the evidence as regards its probable accuracy, but it emphasizes the uncertainty of the testimony which follows. When asked to state the contents of the agreement, he answered: “ Well, it is so long ago that I can’t say that I can do so, only I will state to the best of my recollection, that is all; the details I cannot recollect. There are some things that I know, and some things that I do not recollect. What I recollect I will give, and what I don’t know or don’t recollect I wont give. In the first place, Mr. Van-Horn-—Mr. Robert VanHorn—was to farm the place, to do all the work; and he was to provide, as far as my recollection serves me, half the seed, all the work and half the seed, and he was to get half the pasture. The old man was to provide the other half of the seed, and get the other half of the pasture ; and at the old man’s death,—provided it continued until that time, of course,—at the old man’s death Robert was to get the place. The old lady was to be kept, and I think she was to [503] have kept for her two cows- and a few sheep, six maybe, or something like that. That is all I can recollect. There may have been other things in the agreement, but I can’t tell you what they were. Q. You don’t say that there were any others? A. No, sir; I don’t say that there were any others. Q. That is the wh'ole of the agreement ? A. Yes, sir ; as far as my impression will serve me.” And then, upon cross-examination, he said, further: “ These bequests that I heard read here, I don’t recollect any of them. There may have been something of the kind. Q. Do you know whether there were any bequests in that agreement? A. I don’t recollect that there were. There might possibly have been, because that was the immaterial part of it to me. Q. You have no recollection that there were any bequests in it ? A. No, sir; I have told you all that I can recollect that I think was there. There may have been some other things there. It is the principal points only that were left on my mind.” Upon this testimony, it is perfectly clear that the witness did not undertake to recall the whole of the agreement, only what he considered the principal points. This, by the settled rules of evidence, was insufficient. In Dennis v. Barber, 6 S. & R. 420, an extract from a letter was held inadmissible, though the witness who made the copy, a member of the bar and counsel in the case, offered to prove that there was nothing else in the letter relative to the business in question. And to the same effect is Coxe v. England, 65 Pa. 212, 223. But, taking the agreement as testified to, it falls short of the requirements as to precision of terms. The witness says, “ at the old man’s death,—provided that it continued until that time, of course,—at the old man’s death Robert was to get the place.” On the face of this testimony, it looks as if the proviso as to continuance till the old man’s death was an inference of the witness rather than a term of the contract, but, taking it as the latter, how can it be told with any certainty what was the present interest acquired by Robert? At most, it could be only an executory and inchoate equity, depending on fulfilment of the conditions during the father’s life. But suppose Robert died first, had he an interest that descended to his heirs, and could they step in and fill out the rest of the consideration, or did it lapse, and leave the old man free to contract [504] with another ? At the old man’s death Robert was to get the place. How was he to get it ? By will, by conveyance under order of court founded on this contract, or by an action like the present, on proof of performance of the consideration? Without more precise terms of the contract than the witness gives us, none of these questions can be answered except by conjecture. Again: “ The old lady was to be kept, and I think she was to have kept for her two cows and a few sheep, six maybe, or something like that.” How vague this is, and how important may be the “ other things ” which the witness says may have been in the agreement but he does not recollect, may be judged by the testimony of A. W. VanHorn, son of the plaintiff and called by him to prove performance, who testified that his grandfather told him the terms of the agreement, his father being present, and that “ there was four hundred and fifty dollars to go to my grandmother; it was what she had in the place;.....and Rachel was to get two hundred dollars, and the rest of them, Henry one hundred dollars, and Catharine one hundred dollars.” As already said, the contract rests upon the testimony of Burton. The corroborative testimony of Thompson and A. W. VanHorn, as to the existence of an agreement of some kind, adds nothing to the precision of its terms ; while that of A. W. VanHorn gives a convincing illustration of the radical deficiency of Burton’s. The defendants’ sixth point should have been affirmed, and a verdict directed in their favor. As this ends the case, it is not necessary to notice the other points. Judgment reversed.