Krueger v. Nicola , 205 Pa. 38 ( 1903 )

Opinion by

Mb. Justice Bbown,

The agreement on which the appellant brought this suit was for the sale, or rather exchange, of real estate. He alleged in the statement of his cause of action his readiness and willingness to comply with the terms of the written contract, and claimed damages from the defendant for the latter’s failure to perform them. An affidavit of defense was filed in which the defendant averred his willingness to comply with the contract and alleged the inability of the plaintiff to do so on account of obstacles that were set out in detail. A replication was then filed, in which the plaintiff, in answer to the averment in the affidavit of defense that he owed $10,000 upon the property which he was to convey, to the defendant, set up an alleged oral agreement entered into by the defendant before and at the time the written one was executed, by the terms of which the defendant had agreed to raise for the plaintiff the said sum of $10,000 to enable him to pay off what was substantially a mortgage upon the premises. With the pleadings in this shape the case came to trial, and, under objection by the defendant, the plaintiff was allowed to prove the oral, cotemporaneous agreement set out in his replication.

Without proof of the kind required by the law in a case like this, that Nicola had made the oral agreement to raise the $10,000 for Krueger, it is clear the plaintiff had no cause of action against the defendant, and the jury were so instructed by the learned trial judge. It is equally clear that his statement, containing no averment of such an agreement, and its omission from the written one by fraud, accident or mistake, was insufficient to support the action, and a judgment on it could not be sustained. To contradict or vary the terms of a written contract by an oral, cotemperaneous agreement between the parties, there must be allegation as well as proof, not only of it, but of its omission through fraud, accident or mistake from the writing. This has been ruled so frequently that reference is hardly needed to one or two of the many authorities on the subject. In Wodock v. Robinson, 148 Pa. 503, the plaintiff’s statement set forth a written lease, in which the lessee, her husband, covenanted to keep the premises in good order and repair during the term, but there was an allegation of an oral agreement on the part of' the lessor, at the time of the execution of the lease, that he would repair and maintain the property in good and safe condition. A demurrer was filed on the ground that the alleged oral agreement was contradictory of the terms of the lease and inadmissible in contradiction of it, in the absence of any allegation of fraud, accident or mistake. The demurrer was sustained, and, in affirming the judgment, we adopted as our own the following language from the opinion of the learned judge below: “ It is nowhere alleged in the statement, that the lessee was induced to sign the lease by any fraud, or that there was any accident or mistake in the drawing up of the instrument, or in the insertion of the covenant by which the lessee bound himself for the repairs necessary to keep the premises in good order and condition. There is only the bald statement that the defendant, when the lease was executed, promised, through her agent, that she would repair. The alleged promise is therefore in flat contradiction of the terms of the instrument signed and sealed by the parties, and in the absence of a distinct averment in the plaintiff’s statement, of fraud, accident or mistake, could not be proved at the trial, for it is as true now as it ever was, and is a rule too firmly rooted in justice and honesty to be easily eradicated from any system of wise laws, that all negotiations, all conversations, all oral promises, all verbal agreements, are forever merged in, superseded and extinguished by, the sealed instrument which is the final outcome and result of the bargaining of the parties. Unless you aver fraud or mistake you can no more incorporate in it what does not there appear than you can make and seal a new bond for the parties without their consent. You can no more blot out a word which it contains than you can tear off the signatures and seals of the parties. Manent litterae scriptae is still the rule. The written instrument shall stand as the sole exponent of the minds of the parties."’ Hunter v. McHose, 100 Pa. 38, was a case in which the plaintiffs offered to prove on the trial, just as here, an oral agreement on the part of the defendant which had not been incorporated in the written one, but was alleged to have been the inducement to them to sign it. There was no averment that it had been omitted by fraud or mistake, and the evidence offered was excluded. In sustaining this ruling, we said: “ Had the declaration in this case contained the same averments as in Gower v. Sterner, 2 Whart. 75, namely, that the eotemporaneous parol agreement offered to be proved was intended by the parties to have been inserted in the covenant, but was omitted therefrom by the mistake of the scrivener, there would have been ground for holding that the offer of evidence rejected should have been admitted. Such an averment, if proved, would have justified a reformation of the instrument. What a chancellor would decree to be done, the courts of this state consider as actually done. Covenant then would be the proper action upon the instrument as reformed. The plaintiffs, however, contented themselves with declaring on the instrument as they alleged was agreed, without an averment either of fraud or mistake. This did not meet the exigency of the rule, which requires that the defendant should have distinct notice of the ground upon which the proposed reformation is asked, that he might come prepared to meet it. . . . Parol evidence is inadmissible to reform a written contract according to the intention of the parties, unless the declaration specially sets forth the fraud as a ground for such reformation. The same rule applies of course to the case of a mistake.”

The rule that the allegata and probata must agree in a case like this is not a mere technical one: Rogers, J., in Clark v. Partridge, 2 Pa. 13.

Assuming, on the authority of Mahon v. Gormley, 24 Pa. 80, and Murray et al. v. Keyes et ux., 35 Pa. 384, that a material defect in a narr. may be cured by a replication, to be regarded as an amendment to it (though the much better practice is to formally amend the narr. itself), such replication, it need hardly be said, must be as full as the amendment for which it is substituted. The replication here contains simply an averment of the cotemporaneous parol agreement, with no allegation of its omission from the written one by mistake. As a support to the defective narr., this replication was without strength and useless. Under the pleadings, the testimony as to the oral agreement, promptly objected to, on the ground that there was no allegation in the pleadings that it had been omitted from the written contract by fraud, accident or mistake, should have been excluded. At present it is not necessary that wTe consider other questions raised on this appeal, for, in sustaining the first assignment of error, we reverse the judgment without awarding a new trial.

Judgment reversed.