Schotte v. Meredith

Opinion by

Mb. Justice Mestbezat,

On a former trial of this case, the plaintiff offered to prove that F. G. Schotte^. agreed to pay the Gilpin mortgage, and that the agreement was omitted from the written contract of February 23, 1886, by mistake. The offer was rejected and by direction of the court, a verdict was rendered for the defendant. The plaintiff appealed to this court (192 Pa. 159), and the court below was reversed, and we held that testimony was admissible to prove that it was the intention of the parties that F. G. Schotte, the vendee, should assume the payment of the mortgage, and that reference to the mortgage had been omitted in the written agreement by mistake. On the present trial of the cause the plaintiff offered testimony tending to show the alleged omission or mistake in the written agreement between C. T. Schotte and F. G. Schotte, and it was admitted. The court left it to the jury to determine under the evidence whether the written agreement contained the whole contract between the parties or whether there had been omitted by mistake from the agreement and which should have been inserted in it, a stipulation that F. G. Schotte was to pay the incumbrance on his father’s estate.

The appellant contends on -this appeal that the court below erred in the construction of the agreement, and that by its terms F. G. Schotte should have paid the Gilpin mortgage. The court however placed a different interpretation on the language of the agreement, but on the allegation of mistake in the scrivener who wrote it, permitted the plaintiff to introduce testimony to show that it was the intention of the parties that F. G. Schotte should pay the mortgage, and that it should have been so stipulated in the agreement. The appellant further alleges that the court erred in the quality and quantity of evidence required to justify the jury in finding that there was a mistake in the written agreement. These are the principal matters complained of in the assignments of error and all that require special consideration.

Standing alone, unaffected by parol testimony, the written agreement did not impose on F. G. Schotte the duty of paying the Gilpin mortgage. The language of the agreement did not warrant such an interpretation by the court. The court so held and then the plaintiff sought to correct the terms of the agreement by the introduction of evidence. Some excerpts taken from the charge and embraced in the assignments of error-may not, in themselves and disconnected with other portions of the charge, be strictly accurate. But we must look at the whole charge in determining whether the court has committed any substantial error in submitting the case to the jury. The learned judge of the court below submitted to the jury for their determination, whether F. G. Schotte was to pay all the incumbrances on the estate of his deceased father, which included the Gilpin mortgage, and if so, whether this obligation was omitted from the agreement by mistake. In so doing, he was explicit in stating to the jury the character and quantity of evidence required to correct the alleged mistake in the agreement. In concluding his charge on this branch of the case the learned judge used this language: “ The facts are for you, the law you will take from the court. Taking the testimony of Mr. Rohrer, of Mrs. G. A. Schotte and of Mrs. F. G. Schotte, is the evidence as a whole, considering all of it, of that clear, precise and indubitable character as to enable you to write in this article of agreement, on the part of F. G. Schotte, that he would pay this mortgage. If you find the evidence is not of that character that would warrant you in so concluding, you will dismiss the case and find a verdict for the defendant. If you conclude that it should be written in, then you will proceed to determine a few other matters which perhaps will not be so difficult to find. ” There was clearly no error in thus submitting the case to the jury. We have so held in numerous cases. This was not an attempt by parol to explain a latent ambiguity but to reform a written agreement by showing a mistake by the scrivener in failing to insert therein the whole contract of the parties.

The case was fairly submitted and the jury have returned a verdict justified by the evidence.

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