White v. Black

Opinion by

Rige, C. J.,

This was an action for rent for the year beginning June 1, 1892. The question arising upon this appeal is as to the defendant’s liability by reason of his failure to give three months’ notice of removal assuming that he did not hold over after May 81, 1892.

The plaintiff alleged and gave evidence that the defendant went into possession in 1890 as administrator of William Black, deceased, under a lease to the latter, which provided, “ that either party hereto may determine this lease at the end of said term,” (ending May 31, 1891), “by giving the other notice thereof, at least three months prior thereto, but in default of such notice, this lease shall continue upon the same terms and conditions as are herein contained for a further period of one year and so on from year to year unless or until terminated by either party hereto giving to the other three months’ notice for removal previous to the expiration of the then current term that prior to the expiration of the term a parol agreement was entered into 'whereby the defendant was to have the premises in his own right after the expiration of the current year upon the terms and conditions of the written lease to William Black above referred to; and that the defendant remained in possession under this oral agreement, and did not give three months’ notice of removal prior to the expiration of the year ending May 31, 1892.

The defendant denied the oral agreement above referred to, and alleged that he went into, or rather remained in, possession after May 31, 1891, under an undated lease (partly in writing and partly in print, in which most of the blanks, and especially that relating to notice of removal, were left unfilled), which, as he alleged, was signed and delivered to him prior to June 1, 1891.

In rebuttal, the plaintiff offered and under objection gave evidence from which, if competent, a jury would have been justified in finding that the defendant did not go into possession under the lease last referred to; that it was not executed until after the term had well progressed; and that it was then signed and given to the defendant, at his request for the specific purpose, and for that purpose only, of being used by him to show, in litigation then pending in court -between him ’and a third person, that the plaintiff had admitted him in' his own right as tenant of the premises.

The first and most important question is as to the admissibility of this rebutting testimony. One of the exceptions to the ancient rule upon the subject of the admissibility of parol evidence to affect written instruments is, that the parties may prove the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them: Stephen’s Evidence, sec. 90. The fact that the parties did not so intend is not necessarily nor ordinarily to be inferred from the mere fact that a prior separate oral agreement is not contained in the document. If, however, the document is silent on the subject, it may be proved by parol evidence of what took place at the time of the execution of the document that a prior separate oral agreement, not inconsistent with the terms of the document, or with any implied agreement growing out of it, was not intended to be abrogated. Such testimony is admissible not only where the separate oral agreement was omitted from the writing by fraud, accident or mistake,— which, if the facts warrant the allegation, is a distinct ground for equitable relief — but also where, though no fraud was practiced or intended at the time of the execution of the paper, it would be sanctioning a fraud to permit the paper to be used for a different purpose from that for which it was given, in order to defeat the rights of the other party under the separate oral agreement, and thereby give an unfair advantage.

In Parke v. Chadwick, 8 W. & S. 96, it was said that, “ it is as much a fraud to obtain a paper for one purpose, and use it for a different and unfair purpose, as to obtain it by fraudulent statements.”

In Renshaw v. Gans, 7 Pa. 117, it was said: “ All the cases shown, that 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 perfectly 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.”

Again, in Rearich v. Swinehart, 11 Pa. 233, it was said: “ Nor is it essential to the admission of parol evidence that a fraud was originally intended. It is enough that, though the parties acted, in mutual good faith at the. inception of the transaction, an attempt is made to wrest the instrument to a purpose not contemplated, or to use it in violation of the accompanying agreement. It is as much a fraud to obtain a paper for one purpose, and to use it for a different and unfair purpose, as to practice falsehood or deceit in its procurement.”

The doctrine of these cases was, apparently, not wholly approved in Fulton v. Hood, 34 Pa. 365, but it was reiterated in Lippincott v. Whitman, 83 Pa. 244, also in Cullmans v. Lindsay, 114 Pa. 166, and has been recognized in many later cases. Ift the last cited case it was said: “For although the original design of the defendants’ agent may have been honest, it is a fraud in the defendants, in order to procure an unfair advantage, subsequently to deny the parol qualification, upon the faith of which the contract was made; evidence of the real intent of the parties at the time, therefore, becomes admissible.”

There is another view of the question worthy of consideration. In Drinker v. Byers, 2 P. & W. 528, it was said: “It is certainly true that when articles of agreement for the sale of land are carried into execution by a conveyancé from the vendor and bonds from the vendee, the contract in general is considered as closed, unless in extreme cases showing gross misapprehension or fraud. . . . This, however, is but a general rule to which there are exceptions. See Brown v. Moorhead, 8 S. & R. 569; and is founded merely on presumption, which may, as I apprehend, be rebutted by circumstances or parol evidence.” The same doctrine-was recognized in Close v. Zell, 141 Pa. 390, where it was held that a parol stipulation by the vendor of land, to refund the purchase money in the event of a failure of title, and to reimburse the vendee for any costs and expenses incurred, was not merged in a deed containing a covenant or special warranty but no covenant of- title, afterwards accepted bjr the vendee in consideration thereof.

The case at bar, whilst not exactly parallel, resembles an English case cited by Mr. Anson in his work on Law of Contract, sec. 261 to illustrate the rule of law as to the admissibility of parol evidence of the supplementary terms of a contract not put into the writing, “ not to vary but to complete the written contract.” The case was this: Jervis agreed to assign to Berridge a contract for the purchase of lands from M. The assignment was to be made upon certain terms, and a memorandum of the bargain was made in writing, from which at the request of Berridge some of the terms were omitted. In fact (and this is to be particularly noticed) the memorandum was only made in order to obtain a conveyance of lands from M. When this was done and Berridge had been put in possession he refused to fulfil the omitted terms which were in favor of Jervis'. On action"' being brought he resisted proof of them, contending that the memorandum could not be added to by parol evidence. Lord Selborne, however, held that the memorandum was “a mere' piece of machinery obtained by the defendant as subsidiary to and for the purpose of the verbal and only real agreement under circumstances which would make the use of it for any purpose inconsistent with that agreement, dishonest and fraudulent: ” Jervis v. Berridge, 8 Ch. App. 351.

In Martin v. Berens, 67 Pa. 459, Mr. Justice Williams exhaustively stated the exceptions to the general rule excluding parol evidence, and including amongst them cases, where it was offered; “ to rebut a presumption or equity,” citing Bank v. Fordyce, 9 Pa. 275; Musselman v. Stoner, 31 Pa. 265, also “ to supply deficiencies in the written agreement,” citing Miller v. Fichthorn, 31 Pa. 252; Chalfant v. Williams, 35 Pa. 212. See also Coughenour v. Suhre, 71 Pa. 462; Honesdale Glass Co. v. Storms, 125 Pa. 268; Grierson v. Mason, 60 N. Y. 394.

Apparently it was not important, in the litigation in which the defendant desired to use the paper, to show the terms and conditions of his tenancy; .it was only important to show that he was tenant in his own right of the premises. The paper was given to him for that specific purpose, and not as the consummation of prior negotiations between them or as a fulfilment and execution of a prior executory agreement, if the plaintiff’s testimony is to be believed. The fair inference from that testimony is, that neither party intended it for any other purpose, or supposed that it abrogated and annulled the terms and conditions of the oral lease under which the defendant went into, and was holding, the possession. Unless it be the law, which we do not think it is, that there is an irrebuttable presumption that such was the intention, or that the paper had that effect irrespective of the intention, the evidence under consideration was admissible.

In reply to the suggestion that the plaintiff did not allege in her testimony that she would not have executed the paper had it not been for the representations made, it seems sufficient to refer to the marks of Mr. Justice .Clark in Cullmans v. Lindsay, 114 Pa. 166: “ But the fact, whether or not the parol promise was the inducing cause of the execution of the written contract, especially when the mental purpose is not at the time expressed, is, in general, an inference to be drawn from the facts. These facts are to be exhibited in the proofs, and the work of inference is for the jury.” The principle is applicable here.

It is urged in the second place, that, even if the testimony “was admissible, the facts alleged by the plaintiff in rebuttal were not sustained by the quantity and quality of evidence Required in such cases, and therefore it was insufficient to warrant the submission of the case to the jury. As to the main facts, namely, that the defendant represented that the purpose for which he desired the paper he requested the plaintiff to sign was to prove his tenancy in the litigation between him and his sister-in-law, and that this representation and reqnest (whether made directly to the plaintiff by the defendant or by her son acting as his spokesman) were made and the paper was delivered in pursuance thereof after the term beginning June 1, 1891, had well progressed, the plaintiff’s testimony agreed with that of her son, and their testimony was corroborated to some extent by the appearance of the paper itself — none of the blank spaces in the usual conditions, stipulations and covenants being filled. These two witnesses disagree, it is true, as to the month when the transaction took place, but we do not deem this such a discrepancy as necessarily deprived the testimony of the son of all corroborative effect. It may be conceded that the plaintiff was bound to make out her allegation as to what took place at the execution of the writing by the testimony of two witnesses or of one witness corroborated by other facts and circumstances which gave it greater weight than that of the defendant, or which were equivalent in weight to a second witness, but we are not convinced that the corroboration of plaintiff’s testimony was not fully up to this standard. When it is said that the testimony in such cases must be clear, precise and indubitable, it is not meant that there must be no opposing testimony, but that it must carry a clear conviction of its truth. The learned trial judge was not requested to instruct the jury that there was not that quantity or quality of proof which was required to sustain the plaintiff’s allegations, and we are of opinion that he would not have been justified in giving such instructions even if he had been requested to do so.

Complaint is made that the court failed to instruct the jury as so what would constitute a fraudulent use of the paper, and left them to infer that any use of it which might seem to them fraudulent would justify them in finding a verdict for the plaintiff. We do not so understand the charge. After calling attention to the plaintiff’s allegation as to the special purpose for which the lease was requested and given, the learned judge said: “ Suppose you ignore Augustus Black’s testimony — but you cannot do that without you find something in the case to warrant you in doing that — first, is there anything in the testimony of these two people that without reasonable doubt leads you to believe that this man is now making a fraudulent use of that paper in producing it before you to show it was the lease under which he was a tenant ? Unless you find that fact affirmatively — and you cannot find it affirmatively unless the person who attempts to escape from the lease proves it to your satisfaction, because the onus is upon her — unless you find that to your satisfaction, that lease holds, and under that lease the term ended May 31, 1892, and Mr. Black had a right to lock that place up at half past eleven on that night and take the key to Mrs. White and surrender possession.” Here was a plain indication that the question for the jury was whether or not the defendant had obtained the paper for one purpose and was then attempting to use it for a different and unfair purpose. This was .the fraudulent use referred to in the prior part of the charge embraced in the tenth assignment of error. Taken as a whole the instructions upon this subject were not misleading. Doubtless more specific instructions would have been given had they been asked.

The suggestion that the court intimated to the jury that they might ignore the defendant’s testimony is unsustained. The context above quoted shows that the jury could nt>t possibly have understood that that was what was meant, but rather, that, even if that testimony was ignored, yet the plaintiff could not recover, unless the evidence introduced by her satisfied the jury beyond a reasonable doubt that the defendant was attempting to make a fraudulent use of the paper. We remark in this connection that there is an evident typographical error in the eleventh assignment as printed in the paper-book. The word there printed “ not ” should be “ now,” as the charge shows.

It is to be observed, and this applies to all the assignments relating to the charge, that there was no request for special instructions. Where in such a case the complaint is that the charge was inadequate or one-sided and particular error of law or misstatement of evidence cannot be pointed out, the court will be reviewed on the general effect of the charge and not upon sentences or paragraphs disconnected from the context which qualifies and explains them; if as a whole the charge was calculated to mislead, there is error; if not, there is none. This has been held repeatedly. Looking at the charge as a whole we cannot say that it was either inadequate or misleading.

The evidence embraced in the seventh assignment was competent for the purpose stated in the offer and for that purpose only, namely, to repel the inference or argument, for which the defendant had laid ground, that the plaintiff’s claim that the defendant was in under the terms of the old lease was a fabrication of recent date. The leading Pennsylvania cases bearing upon the question of the admissibility of this kind of testimony are cited in the opinion of our Brother W. D. Porter in Quigley v. Swank, 11 Pa. Superior Ct. 602. To these may be added Crooks v. Bunn, 136 Pa. 368, Harvey v. Gunzberg, 148 Pa. 294, and Thomas v. Miller, 165 Pa. 216. See also Huckestein v. Kelly, 152 Pa. 631.

The other assignments do not require particular notice. We discover no error in the record for which the ‘judgment should be reversed. The judgment is affirmed.