Heydt v. Frey

Opinion by

Mb. Justice Gbeen:

After a patient examination of the extended offer of proof rejected by the learned court below, we are unable to discover any material difference in it from the testimony given on the former trial. The note in suit was an absolute obligation for the payment of $850 one year after date with interest at 5 per cent. It is impossible that this note can be treated as in any manner a contract to pay interest only to the payee Sarah Boyer, and the principal sum either not at all or 'to Mrs. Heydt, upon the footing that it was her money, received from her mother, Mrs. Boyer, as an advancement. Such a theory is absolutely at war with any conceivable reading of the instrument, and hence the parol proof offered was a simple destruction of the written contract.

In this respect the case differs radically from Lyon v. Hunlingdon Bank, 14 Serg. & R. 283. There the written and verbal agreements could stand together. The former was subject to the latter, and the attempted use of the former, in violation of the latter, was held a fraud against, which a chancellor would relieve. It was very true that the verbal agreement in that case was made several years before the instrument in suit was given; but the instrument in suit was merely the last of a series of renewals of the original note, at the making of which the verbal agreement was made, respecting the collaterals which were to be looked to alone as the source of payment. The contract itself was not changed by the verbal proof, but only the use to be made of it, and so we said in both Rearich v. Swinehart, 11 Pa. 239, 51 Am. Dec. 540, and Rearick v. Rearick, 15 Pa. 66.

In the latter case, however, when it came back after a second trial and an abortive attempt to prove what was, upon the first trial, a very liberal offer of testimony, rejected by the court below, some very salutary remarks were made by the judge delivering the opinion, which are quite apposite to the contentions of the plaintiff in error in the present case. Thus, on p. 72, Bell, J., said: “Now in the somewhat unsteady course of decision upon this vexed point of evidence, if any principle has been adhered to -with tenacity, it is that oral proof to vary or affect a written instrument must be confined to what occurred at the execution of it. . . . Even thus restricted it is acknowledged to be full of danger. Were the door opened still wider for the admission of all the loose dicta of the parties, running, it might be, as in this instance, through a long course of years, the flood of evil would become so great as to sweep before it every barrier of confidence and safety which human forethought, springing from experience, is so sedulous to raise against the treachery of memory and the falsehood of men. To avoid, therefore, what would really be a social calamity, it is recognized as a settled maxim that oral evidence of an agreement or understanding between parties to a deed or other written instrument entertained before its execution shall not be heard to vary or materially affect it. . . . Accordingly, the settled rule is that when a contract has been reduced to writing, it is understood as expressing the final conclusions of the contracting parties, and fully accepted as merging all prior negotiations and understandings, whether agreeing or consistent with it.”

As we stated in our former opinion in this case, there was no proof of contemporary acts or declarations. No one was present, or has testified as to what took place, when the note in suit was executed. We, therefore, cannot know what then transpired, or that anything transpired, except the mere signing of the note. This being so, there was no foundation upon which the offer of proof of the subsequent declarations could stand. This also was met in the former opinion by another citation from Rearick v. Rearick, 15 Pa. 66, so entirely appropriate that it will bear repetition:

“As to the subsequent declarations of the testator, it has been already intimated, their competency is altogether dependent on the efficacy of the first conversations, as instruments of proof. The former are receivable only as corroborative of the latter, and these being excluded, there remains nothing upon which those can be supported.”

The present offer does not change the former situation in this respect.

It only remains to say that the “transaction” involved in the present controversy is the note in suit, and any verbal agreement or declarations which are to affect that instrument must be contemporaneous with it. Whether Mrs. Boyer at some time anterior to this made an advancement to her daughter, Mrs. Heydt, of a sum of money, is another and a different question, the determination of which must not be confused with that of the note in suit. If the money belongs to Mrs. Heydt because it was advanced to her, she can doubtless assert her claim to it in some appropriate form and proceeding, but the consideration of that question is quite aside from the present contention. We are of opinion that the offer of testimony on the part of the defendant was properly rejected, and therefore—

The judgment is affirmed.