McCord v. Williams , 96 Pa. 78 ( 1880 )

Mr. Justice Paxson

delivered the opinion of. the court, November 15th 1880.

The learned judge of the court below was certainly inaccurate in that portion of his charge embraced in the first assignment, of error. The written agreement between the parties contains no clause by which the plaintiff “ agreed to use his personal influence to bring and procure the attendance of pupils to said institute, and to lend the influence of his name for the benefit and advantage of said institute.” The most the agreement provided for was a sale of the “good will.” -But this involved no personal effort on the part of the plaintiff to influence the attendance of pupils. Nor was this error cured by the subsequent sentence of the charge in which reference was made to a separate agreement. The jury were still left under the impression that the plaintiff had entered into a written contract to lend his personal influence in favor of defendant’s school. We cannot say this error was immaterial. Juries give great weight to written agreements, and very properly. Such agreements usually embody the real contract between the parties; and the law presumes that all previous propositions and negotiations are merged in what they have reduced to writing. The evidence in regard to the agreement referred to by the court was altogether in parol, and consisted of alleged declarations of the plaintiff prior to the execution of the writing. Upon this point the evidence of the defendant was flatly contradicted by the plaintiff. Under these circumstances the jury might very possibly have found for the plaintiff but for this misleading portion of the charge.

The exhibits referred to in the third, fourth, fifth and sixth assignments were improperly received. They were not connected with the plaintiff: were not shown to have been issued at his instigation or as to most of them even with his knowledge. They were at the least irrelevant, and may have confused the jury. We cannot say how much harm they were calculated to do as the exhibits are not given in the paper-book. This is in violation of our rules of court, but as the counsel for plaintiff was not able to procure them for insertion in his paper-book, we will accept his excuse as sufficient.

The remaining assignments do not need remark.

Julgment reversed, and a venire facias de novo awarded.