Greenawalt v. Kohne , 1877 Pa. LEXIS 262 ( 1877 )

Mr. Justice Sharswood

delivered the opinion of the court, November 12th 1877.

We are of opinion that the offers of evidence by the defendant below ought to have been received.

It is agreed that the English rule excluding parol evidence to vary a written contract has not been adopted in this state in all its stringency. The exceptions, indeed, have in many instances almost eaten out the heart of the rule itself; but it is not altogether abolished, as may be seen in Martin v. Berens, 17 P. F. Smith 459, where, in an elaborate opinion, our late lamented brother, Mr. Justice Williams, exhaustively states the exceptions to the rule. But from Hurst’s Lessee v. Kirkbride, decided in 1773 — reported by Chief Justice Tilghmah in Wallace v. Baker, 1 Binn. 610— down to the present time, this court has uniformly held, that where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which' the writing has been executed, that parol evidence is admissible, though it may vary and materially change the terms of the contract. Mr. Justice Williams recognises this in his opinion in Martin v. Berens, for he says, speaking of the case then before the court: “ Here there is no allegation in either affidavit that the defendants were induced to execute the lease on the faith of the alleged parol agreement.” It would be an affectation of learning to cite all the cases which establish this principle, but to those contained in the argument of the counsel of the plaintiff in error, may be added Miller v. Henderson, 10 S. & R. 290, which is instar omnium, but may be noticed as a case on all fours with the one now before the court. There parol evidence was held to be admissible under the plea of payment to a suit on a bond against a surety, to show that he executed the bond under a declaration by the obligee, that his signing was mere matter1 of form, and that he never should be called on for payment. Chief Justice Tilghman says: “ The destruction of a written instrument by parol evidence may seem dangerous, and, in fact, it is so. But the community would be in a still worse condition if it were established as an inflexible rule, that when a man’s hand was once got to an instrument, no matter by what means, the door should be shut against all inquiry. The encouragement to fraudulent villainy would be so great under such a system that the consequences might be intolerable. The defendant does not deny that he executed these notes, or allege that he was ignorant of their contents ; but declares that he would not have executed them, but for the assurance of the plaintiff that the having two names was no more than matter of form, and that he should not be looked to as payer.” We cannot perceive any ground for the hypothesis of the learned judge below, founded upon the offers of evidence, that it should be regarded as a separate parol contract by the plaintiff below to repurchase, void by the Statute of Frauds, and only to be admissible upon showing fraud at the time. The law may be so. We cannot anticipate, of course, what the evidence may be on another trial. But certainly if the offers are supported by competent and sufficient evidence, it was all one and the same agreement containing concurrent and dependant covenants. It need not be said that a tender of a reconveyance was unnecessary, unless the improvements on the ground were paid for and the other terms of the contract offered to be complied with.

Judgment reversed and venire facias de novo awarded.