Phillips v. Meily , 1884 Pa. LEXIS 228 ( 1884 )

Mr. Justice Paxson

delivered the opinion of the court,

This was an action of assumpsit upon a promissory note. The note was not only signed, but drawn by the defendant and delivered to the plaintiff. It was in the usual form of a promissory note, whereby the defendant promised to pay to the order of the plaintiff, one year after the date thereof, three thousand dollars, with interest from January 1, 1875. The note was dated April 1, 1874.

The defence was that the note was given for a note of like amount, placed by the plaintiff in the hands of the defendant for collection, and was not to be paid unless the note so handed to the defendant was collected by him; in other words, that the note, instead of being an obligation for the payment of money, was intended as a mere receipt or memorandum, and was not to be enforced according to its'terms, unless the defendant succeeded in collecting the note which had been placed in his hands as above stated.

The jury found for the defendant, and the question for this court is whether the evidence was sufficient to submit to them. If it was, we find nothing to criticise in the manner of its submission.

The case rested upon the testimony of the parties, plaintiff and defendant. The latter testified distinctly and clearly to the fact that the note was given for the purpose claimed by him, and for no other. The plaintiff testified quite as distinctly that he sold the Forge Company’s note to the defendant, and took the note in suit in payment therefor. The corroborating circumstances are of little weight, and incline about as much to the one side as the other.

It will thus be seen that the note in suit, supported by the oath of the plaintiff, was allowed to be overcome by the mere oath of the defendant in a case in which there was neither allegation nor proof of fraud, accident or mistake in the execution and delivery of the note. If this was according to law it must stand, however suggestive it may be of peril to the holders of such securities.

The English rule that parol evidence is inadmissible to vary the terms of a written instrument does not exist in this state. The cases are numerous upon this point; it is sufficient to refer to Kostenbader v. Peters, 30 P. F. S., 438. It would perhaps be more accurate to say that the rule has been relaxed, for the guards which this court has thrown around the modification of the rule have to some extent preserved the rule itself. In the present condition of the law of evidence, public policy requires that we should do nothing to increase the facilities for destroying written instruments. As was well observed by our brother Trunkey in the recent case of Juniata Building and Loan Association v. Hetzel, 7 Out., 507: “Now that parties are competent witnesses, each may oppose his oath to the others, and certainly when written contracts or obligations are sought to be impeached by defences purely equitable, the reason is stronger than formerly for enforcing the rules of evidence applicable to cases in equity.”

The cases in this state in which parol evidence has been allowed to contradict or vary written instruments, may be classed under two heads : 1st. Where there was fraud, accident or mistake in the creation of the instrument itself, and 2d. Where there has been an attempt to make a fraudulent use of the instrument, in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed. To the latter class belong Renshaw v. Gans, 7 Barr, 117; Rearich v. Swinehart, 1 Jones, 233, and Lippincott v. Whitman, 2 Norris, 244. The case last cited was a scire facias upon a mortgage, which by its terms was payable in one year. The defendant filed an affidavit of defence in which she set forth that she had agreed to give a mortgage payable in three years; that when she came to sign the papers she discovered that it had been made payable in one year; that she objected to signing it for this reason, and was only induced to do so upon the plaintiff’s assurance that he would not foreclose until the expiration of three years. Having sued it out at the expiration of one year, this court held that it was a fraud to attempt to enforce it at that time. Here there was an oral stipulation without which the paper would not have been signed. The same is true of Hoopes v. Beale, 9 Norris, 82, and nearly, if not quite, all of the cases cited for defendant. There is not a word to show that the note in controversy was signed by the defendant upon the faith of any assurance or promise on the part of the plaintiff that he would not proceed to collect it, or use or treat it as a promissory note. On the contrary, the defendant, when he received the note of the Forge Company, of his own motion drew up, signed and delivered to the plaintiff the note in suit without anything being said by either party as to the use to which it was to be applied. The defendant’s testimony amounts to no more than that the note was not to be paid according to its terms, but only upon the contingency that he should be able to collect another note from the Union Forge Company, That such evidence is no defence was decided in Hill v. Gaw, 4 Barr, 493; Anspach v. Best, 2 P. F. S., 356; Hacker v. The National Oil Refining Company, 23 P. F. S., 92; Heist v. Hart, Id., 286.

There is, however, another and more serious difficulty, in the way of the defendant. The defence set up, if it amounts to anything, must be sufficient to reform the note, and the evidence must be strong enough to justify a chancellor in doing so. It is only where a chancellor would reform the instrument that parol evidence is admissible to contradict it. It is true, under our practice in Pennsylvania, it is accomplished through common law forms. But the fact remains that the defence set up is purely equitable, and the Judge ought not to submit the case to the jury unless the evidence is such that he would feel himself bound as a chancellor to reform the instrument. With our modification of the English rule, now too firmly embedded in our system to be disturbed, and our Act of Assembly which makes every defendant a competent witness, the principle above stated is about all there is left to preserve the sanctity and force of an instrument of writing, whether that instrument be a deed, which is the evidence of a man’s title to his home, or an obligation for the payment of money.

Here, in addition to the plaintiff’s oath, we have the persuasive evidence furnished by the note Itself. Both are brushed away by the oath of the defendant. No chancellor would reform a writing upon such testimony as is here presented. The rule is that a chancellor invariably refuses to decree on the uncorroborated testimony of a single witness: Brawdy v. Brawdy, 7 Barr, 157. The learned Judge should have withdrawn the case from the jury by a binding instruction to find for the plaintiff.

Judgment reversed and a venire facias de novo awarded.