Russell v. Spring City Glass Works, Ltd. , 1897 Pa. Super. LEXIS 321 ( 1897 )

Opinion by

Smith, J.,

The defendants, who were doing business as copartners, under the name of The Spring City Glass Works, Limited, made a written contract with the plaintiff by which they engaged him as salesman for the term of three years from July 15, 1893, at $1,800 per year and expenses. The plaintiff entered upon his duties under the contract and continued to perform them until December 1, 1894, when he was discharged by the defendants. In May, 1895, he found other employment. He subsequently brought this suit for wages for the interval between December 1, 1894, and May, 1, 1895, under the agreement, and recovered a judgment for the amount of his claim.

At the trial, the defendants, to justify their discharge of the plaintiff, alleged that he was negligent in the performance of his duties. On this subject testimony was introdnced by both parties. This question was submitted to the jury who, by their verdict, exonerated the plaintiff from the charge. The principal ground of complaint here, however, is that the court below erred in withdrawing from the consideration of the jury the testimony as to what took place prior to the execution of the agreement, which, the appellants argue, induced them to sign the contract. It is alleged that at a meeting between the directors of the defendant company and the plaintiff, a few days before the writing was executed, he stated that he had a flint glass trade from which he derived an annual profit of $600; that he sold, as a glass broker or jobber, from $40,000 to $60,000 worth of glass annually, and that all of this together with his Philadelphia office would be turned over to the advantage of the defendants, if he engaged with them. But when-they asked him to guarantee that he would make a certain amount of sales for them — that he would sell the product of their factory — he positively refused to do so; and the written agreement, which he submitted some days afterward, was signed by the defendants without other guaranty or assurance than is contained therein.

The representations of the plaintiff related to his business standing and experience, and may or may not have been true. Nothing was shown on the trial which necessarily disproved them, unless the disappointed expectations of the defendants be accepted as such proof. But the vital point is that they formed no part of the contract made by the parties. This appears by the testimony of the defendants themselves. It may be that the defendants, in making the contract, were influenced by the plaintiff’s representations ; but there is no evidence of falsehood, fraud or promise by which they were induced to close the bargain. At most the alleged representations by the plaintiff were designed to impress the defendants with a belief in his ability to sell their product; but he declined to bind himself to do this, and the stipulation that he would do so was excluded from the writing. Under these circumstances the learned trial judge was right in ruling that nothing was shown which would justify the jury in modifying the written contract; and that all the ■preliminary negotiations were presumed to be merged in the written agreement. We are now asked to say, substantially, that the court below erred in excluding from the consideration of the jury that which the parties themselves excluded from their contract.

The appellant’s argument is based on the assumption that there was a contemporaneous parol agreement on the faith of which the writing was executed and without which it would not have been signed, and authorities are cited for the proposition that “ 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,” this may be shown by parol, even if by doing so the whole contract will be set aside. This is a correct statement of the law. But the difficulty with the appellant’s case is that it fails to show any contemporaneous-agreement, or any agreement,.other than that embodied in the writing; and therefore there was nothing to which this proposition could apply. There was here no use of the instrument, or any attempt to use it, for any other purpose than the one for which it was intended, or in violation of any condition or representation upon which it was procured. The representations referred to did not constitute an agreement, promise or condition of any kind, and were, therefore, properly excluded.

What has been said sufficiently covers the matters complained of in the first and fourth specifications. The second and third specifications were not pressed at the argument; they were properly abandoned.

The judgment is affirmed.