Smith Etc. v. Holmwood ( 1925 )

Argued October 19, 1925. Defendant appeals from a judgment against him in an action in assumpsit in which plaintiff sued to recover the price of advertising caused to be furnished by it to defendant in the Stanley Theatre Magazine and Program under a written contract. Defendant admitted the execution of the contract and attempted to avoid liability solely on the ground that he was induced to execute the contract by certain fraudulent representations made to him by plaintiff's agent. The contract contained the following: "No agreement recognized unless stated on face of contract." At the trial plaintiff proved its case by offering certain paragraphs of its statement of claim and the affidavit of defense. Defendant took the witness stand and was asked: "What representations plaintiff's agent made to him before he signed the contract." The objection to the question was sustained, an exception was noted for defendant, and the case closed. The only error assigned is the refusal of the court below to permit the above question to be answered. The ruling was correct. Where parties have deliberately put their agreement in writing stipulating that all agreements must be in writing and that no verbal arrangements will be recognized, such a stipulation forms a material part of the contract and is enforceable as such. (See Meyercord Co. v. Gwilliam Mfg. Co., 85 Pa. Super. 33, and cases therein cited.) Parties may safeguard their rights by such a stipulation. If this were not so a contracting party would be powerless to protect himself from parol modifications of his solemn contract: Gross v. Exeter Machine Works, Inc., 277 Pa. 363. If the purpose of the question was not to introduce testimony to alter the written agreement, but to set it aside because it was procured by fraud, the learned counsel for defendant should have made an offer to prove fraudulent representations made at the time of its execution. No such offer was made. The question was whether plaintiff's agent made any representations "before you entered into the contract." The trial judge cannot be convicted of error for sustaining the objection.

All of the assignments of error are overruled and the judgment is affirmed.