El Dorado Jewelry Co. v. Hopkins

Opinion by

Head, J.,

As our courts have, from the earliest days, administered relief, equitable in character, in our common-law forms of action, it is not surprising that we have long lines of decisions defining the conditions under which parol evidence may be offered, to attack a written instrument and the standards, as to quantity and quality, to which that evidence must measure up if the attack is to be successful. Nor is it strange that, in a commercial age, when the number of our business transactions is equalled only by their variety, complexity and magnitude, fraud and covin, the parasites peculiar to such conditions, should assume forms as varying as the affairs out of which they develop. Hence we may agree with the learned court below, that it is sometimes difficult to so interpret the many precedents and apply them to the facts of each new case as it arises, as to preserve that harmony which contributes so greatly to precision and accuracy of judgment.

But the correct solution of the narrow question now before us does not, in our opinion, demand any extensive review of the cases or discussion of troublesome problems because it can be reached by the application of a few principles, the controlling force of which can hardly be gainsaid.

This appeal comes from the order of the court below discharging a rule for judgment for want of a sufficient affidavit of defense in an action of assumpsit for the price of goods alleged to have been sold and delivered by the plaintiff to the defendant. The action is founded on a written or printed order signed by the defendant and accepted by the plaintiff, according to the terms of which the price therein named had become due and payable before the suit was brought. The defendant, not denying that he signed'the paper, avers that he never entered or intended to.enter into the contract therein shown. That he positively refused to buy the plaintiff’s goods, but did agree to accept an agency for their sale on the terms and conditions he sets up. That the plaintiff’s agent secured his signature to the order by falsely and fraudulently representing that it would be received and held merely as a memorandum of goods to be placed on sale in his store and that no attempt would be made to use it to enforce payment in accordance with its terms. In other words, the affidavit sets up that the execution of the alleged written contract was procured by a fraud and that the use now sought to be made of it is in flat violation of the plaintiff’s promise to the contrary upon the faith of which the defendant attached his signature to the paper.

At this stage of the case all of these averments of fact must be regarded as having been conclusively established by abundant and satisfactory testimony. We are thus relieved of any consideration of the many cases cited in appellant’s brief which deal with the nature and extent of the evidence that must be produced in order to affect or modify a written contract by a contemporaneous one in parol. Can there be any doubt then that a party should be heard in defending against the enforcement of a written contract when it is established that its execution was procured by false representations and that such use of it was in violation of a promise to the contrary on the faith of which it was signed ? The answer to this question is clearly stated by Porter, J., in American Harrow Co. v. Swoope, 16 Pa. Superior Ct. 451, in this language: “ When a party is thus inveigled into signing a written contract upon the faith of a contemporaneous agreement, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, that oral agreement may always be shown when the enforcement of the paper is attempted.”

As the authorities supporting the principle thus stated are collated and cited in that case, and as it is practically “ on all fours ” with the present one, further comment here would be useless.

Appeal dismissed at the costs of the plaintiff, but without prejudice, etc.