Lippincott v. Whitman

Mr. Justice Paxson

delivered the opinion of the court, January 15th 1877.

The rule is well settled in Pennsylvania that where equity would reform or set aside a written instrument on the ground of fraud, accident or mistake, parol evidence is admissible to contradict or vary the terms of the agreement as written: Christ v. Diffenbach, 1 S. & R. 464 ; Iddings v. Iddings, 7 Id. 111; Miller v. Henderson, 10 Id. 290 ; Parke v. Chadwick, 8 W. & S. 96 ; Clark v. Partridge, 2 Barr 13; Renshaw v. Gans, 7 Id. 117; Rearick v. Swinehart, 1 Jones 233; Martin v. Berens, 17 P. F. Smith 459; Kostenbader v. Peters, 2 Weekly Notes 531. An exception to the rule exists in the case of commercial paper, which for reasons of public policy cannot be impeached in this way.

The judgment in this case was entered for want of a sufficient affidavit of defence. The plaintiff in error avers in said affidavit that the mortgage sued upon was given by her with the express understanding and agreement that it should-be drawn'payable three years from date; that she discovered that said mortgage was drawn payable in one year instead of three years; that she remonstrated with the defendants in error about it, and they assured her and agreed upon her signing it that it should be considered as for three years, and would not be enforced before the expiration of that'time; that upon this agreement only did she consent to sign the mortgage and that without it she would not have done so. The defendants in error foreclosed the mortgage at the end of a year. No interest was owing and unpaid at that time. If the facts be as stated in the affidavit of defence, and for the purposes of this case we are bound to presume them to be so, it was a fraud upon the plaintiff to foreclose the mortgage at the end of a year. It was an abuse of the instrument that brings the case within the rulings in Renshaw v. Gans and Rearick v. Swinehart, supra. It was said in Renshaw v. Gans, by Mr. Justice Bell, that “in order to pave the,way for the reception of oral declarations, it is not necessary to prove a party was actuated by a fraudulent intention at the time of the execution of the writing. His original object may have been honest and upright; but if to procure an unfair advantage to himself, he subsequently deny the parol qualification of the written contract, it is such a fraud as will, under the rules, operate to let in evidence of the real intent and final conclusion of the contractors.” So in Rearick v. Swinehart it was said, “ a legal delinquency attaches upon an attempted abuse of the writing sufficient to subject it to the influence of oral evidence.” The case of Fulton v. Hood, 10 Casey 365, was cited as 'in opposition to this view. We do not so understand it. It is true parol evidence AYas rejected in that case to show that the warrant of attorney was not to be entered up for ten years except upon a certain contingency, and that it had been entered up in violation of said agreement. But there was no offer to show that the bond Avas signed upon the faith of such agreement, and that it Avould not have been signed without it. The parties were not misled. It was said by Mr. Justice Strong, who delivered the opinion of the court in Fulton v. Hood, that the doctrine of Renshaw v. Gans and Rearick v. Swinehart, was inapplicable to that case. It is applicable here. The plaintiff in error sw§ars distinctly that she refused to sign the mortgage until she was assured that it ayouM be considered as for three years, and that AYithout such agreement she would not have executed it. In vieAY of this agreement it-needs no argument to shoAY that it Avas an abuse of the mortgage to use it for the purpose of selling the mortgaged premises at the expiration of a year. The abuse ip shoAYn by the premature foreclosure, and even under the vieAvs expressed by Mr. Justice Strong in Fulton v. Hood, would let in the parol evidence referred to. The plaintiff may have seen her way clear to pay the mortgage debt at the expiration of three years. It may be ruin to her to have it foreclosed at the end of one year. We think she was entitled to have her case passed upon by a jury, and that it Avas error to enter a judgment against her for Avant of a sufficient affidavit of defence.

It may be that parol evidence in such cases is of a dangerous character. We may concede it to be so. But the rule in this state is too well settled to be disturbed; on the other hand, it is in the experience of every laAvyer that if ave were to adopt as an inflexible rule the principle, that when a man once puts his hand to a written instrument, the terms thereof cannot under any circumstances be modified or contradicted, it would lead to consequences of a most serious charater. Instead of being a shield against fraud it would be its efficient and sure protection. Neither view of the case is entirely free from difficulty. The rule adopted in this state seems to be the lesser of íavo evils, and because it is so, and because it has become established by a line of authority, Ave prefer to adhere to it.

The judgment is reversed, and a procedendo awarded.