Bowman v. Tagg

Opinion by

Mr. Justice Sterrett:

Since this ease was here before, plaintiff in error claims to have discovered that the special authority under which he' collected the rents in suit was very different from the written power of attorney construed by this court in 99 Pa. 376, and again in 108 Pa. 273, 56 Am. Rep. 204, and under which he assumed to act as agent for plaintiff below. According to the express terms of that instrument, he was bound, as we have heretofore held, to apply the rents when collected to payment of the following feharges and liens on the demised premises in their order; first, water rents and taxes; second, interest on the Philadelphia saving fund mortgage; third, interest and dues on the building association mortgage; fourth, interest on his own mortgage; and lastly, to pay the residue, -f any, to his principal, the plaintiff below.

Having, by virtue of the special agency thus created, collected $7 00 of rents, we held that he could not be permitted, in violation of the express trust on which he received the money, to apply it exclusively to the interest and principal of his own mortgage, for the reason that such an application was a manifest misappropriation of funds received by him for other specific purposes. To avoid the effect of that ruling, he proposed to prove, on the last trial, that, at the time he received the letter of attorney containing the clause above referred to, specifically designating the purposes to which the rents when collected should be applied, “a verbal alteration was made by plaintiff, upon which it was accepted by defendant, viz.: that he could use the rents in his own discretion for his own protection.” In other words, he proposed to flatly contradict that most important provision of the written instrument, without offering to explain how it came to pass that the alleged alteration was not reduced to writing, or even suggesting that it occurred through fraud, accident, or mistake.

As was said in Martin v. Berens, 67 Pa. 459, “Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement, and we are not disposed to relax the rule. It has been found to be a wholesome one, and now that parties are allowed to testify in their own behalf, the necessity of adhering strictly to it is all the more imperative.”

In his effort to convince the tenant that he was authorized to collect the rent in question, plaintiff in error furnished him with a copy of the power of attorney, calling his attention to the fact that the rent when collected was specifically appropriated to the several objects therein named. This would seem to indicate that it had not been so altered by verbal agreement as to permit plaintiff in error to appropriate the money to himself. But this may have been an oversight and would not have warranted the exclusion of the evidence embraced in the offer. As an offer to contradict the written instrument, however, in one of its most important provisions, without proof of such facts or circumstances as would justify the admission of testimony for that purpose, it was properly rejected on the principle of the case above cited. If the principle of that and kindred cases is ignored, written instruments will afford very little protection.

The questions involved in the remaining specifications are substantially the same as those that were considered and disposed of when the case was here before. It is unnecessary to either repeat or amplify what was then said.

J udgment affirmed.