Miller v. Wise , 1907 Pa. Super. LEXIS 343 ( 1907 )

Opinion by

Oblady, J.,

This action of trespass was brought to recover damages for the taking of certain personal property, the title to which was in dispute between the parties hereto. The controversy on the trial was the effect to be given to certain alleged contemporaneous agreements or understandings which were made preliminary to, and at the time of the execution of, the contract between the parties. The defendant requested that under the law and the facts in the case the verdict should be directed in their favor, which was refused and rightly so, as there was sufficient of contradiction in the testimony to warrant the court in submitting the case to the jury. The trouble arises through the manner in which it was submitted to the jury, in the charge, as follows: “ Now, a written paper under seal is held to be the agreement of the parties until it is successfully attacked, and it can only be successfully attacked by showing that there was a contemporaneous agreement made at the same time between the parties which was part of the agreement, and without which agreement the parties would not have entered into the written agreement. . . . . Before you can find a verdict for the plaintiff you must be satisfied from the proof, his own testimony and corroborating circumstances existing in the case, as to what occurred and what existed the first year before the lease was made, and what is apparent on this statement furnished by the plaintiff herself, whether or not there was such a verbal agreement.”

The English rule that parol evidence is inadmissible to vary the terms of a written instrument has long since been departed from in this state; and since that departure a constant temptation has existed to change the terms of a writing by any and all kinds of evidence, to reach equity, or what is fancied to be equity between the parties. The rule in this state is comprehensively announced in Thomas & Sons v. Loose, 114 Pa. 35, to be: “ Parol evidence is admissible of a contemporaneous oral agreement which induced the execution of a written contract, though it may vary, change or reform the instrument. It has often been said that such oral agreement must be shown by evidence that is clear, precise and indubitable.” These words clear, precise and indubitable or words of equivalent meaning in measuring the degree of proof necessary to vary, reform or contradict a written instrument by evidence of a contemporaneous pafol agreement have become so thoroughly implanted in our decisions that they are now indispensable, and may not be departed from in submitting to a jury the disputed facts relating to such a subject-matter. A score and more of decisions may be found in a few of the later cases : Streator v. Paxton, 201 Pa. 135; Sutch’s Estate No. 1, 201 Pa. 305; Ogden v. Traction Co., 202 Pa. 480; Miller v. Interstate Casualty Co., 17 Pa. Superior Ct. 360; Butler v. Keller, 19 Pa. Superior Ct. 472. The case was submitted to the jury on the theory that they could discharge their duty by ascertaining in whose favor the weight of the evidence tended ; “ his own testimony and corroborating circumstances,” which under all the decisions is not .of a sufficient grade or weight to destroy the effect of a written contract, and under which decisions the sixth assignment of error is sustained. The reception by the court of the testimony quoted in the first assignment of error was not of itself erroneous, as it was admitted to be but a step in the direction of contradicting the written agreement, and to be followed by other-corroborating testimony. To the same effect was the evidence submitted and complained of in the second assignment of error. The other assignments are so intimately associated with the quotation from the charge of the court that it is not necessary to dispose of them severally.

For the reasons above given, the judgment is reversed and a venire facias de novo awarded.