Bown v. Morange to Use of Hall

• Decision Date: 05 January 1885
• Citation: 108 Pa. 69
• Parties: Bown <I>versus</I> Morange to use of Hall.
• Court: Pennsylvania Supreme Court

108 Pa. 69

Bown versus Morange to use of Hall.

Supreme Court of Pennsylvania.

November 8, 1884.

January 5, 1885.

November 8th, 1884.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas No. 1 of Allegheny county: Of October and November Term, 1884, No. 207.

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H. W. Weir, for plaintiff in error.—Parol evidence is admissible of a contemporaneous agreement, that a written contract should not be enforced according to its terms, but should be qualified in accordance with such parol agreement, whenever a party seeks to procure an unfair advantage by denying the parol qualification: Lippincott v. Whitman, 3 W. N. C. 313. Parol evidence is admissible to show that at the execution of a written instrument, a stipulation was entered into, a condition annexed, or a verbal promise made, upon the faith of which the writing was executed, though it may vary or materially change the terms of the contract: Greenawalt v. Kohne, 85 Pa. St. 369; Barclay v. Wainwright, 86 Pa. 191; Coe v. Schenkmeyer, 5 W. N. C. 252; Robinson v. Leahy, 5 Id. 318; Baillie v. Kessler, 6 Id. 527; Hoopes v. Beale, 90 Pa. 82; Whitney v. Shippen, 89 Id. 22; Keough v. Leslie, 92 Id. 424; Burk v. Kerr, 12 W. N. C. 191.

George Shiras, Jr., for defendant in error.—The first four assignments raise the question whether a judgment that had stood of record unimpeached for a period of five years, can be invalidated by parol evidence of what is alleged to have taken place at an interview between the plaintiff and the defendant, at a different place and at a time prior to that when the judgment was confessed. It appears from the fourth offer of evidence of the defendant below, that the alleged conversation as to the confession of judgment occurred in his store and that the judgment was confessed afterwards in Mr. Dickey's office. How long afterwards does not appear. A written instrument under seal and free from ambiguity, cannot be affected by a conversation of the parties thereto held prior to its execution: Caley v. Hoopes, 5 Norris 493; McClure v. Railway Co., 9 Norris, 269; Stine v. Sherk, 1 W. & S. 202. A defendant cannot be permitted to impeach a judgment, in a sci. fa. thereon, by alleging prior matter: Dowling v. McGregor, 10 Norris 411.

Mr. Justice STERRETT delivered the opinion of the court January 5th, 1885.

The question involved in the first four specifications of error is whether the offers of evidence therein recited were rightly rejected. In substance, the offers were to prove that at the time the judgment, which forms the basis of this action, was confessed, it was understood and agreed by and between plaintiff and defendant that the confession or judgment should not prejudice the latter in obtaining his discharge in bankruptcy, for which an application was then pending in the proper court; that if, in due course, he procured his discharge, plaintiff should stand upon the same footing as defendant's other creditors, and the judgment should not be enforced against him, or, as it is expressed in the third offer, the discharge should operate as a satisfaction of the judgment; and that it was upon the faith of the agreement, of which the foregoing is the substance, that the judgment was confessed. In addition thereto, other matters of fact, more or less intimately connected with the compromise and confession of judgment, are embraced in the respective offers, but special reference to them is unnecessary. The judgment was confessed after defendant was adjudicated a bankrupt and before he obtained his discharge, for a provable debt contracted before commencement of proceedings in bankruptcy. The mortgage given to secure the debt had been foreclosed and the property sold to the equitable plaintiff for $1,150, but exceptions to the sheriff's sale were pending when suit for residue of the debt was brought on the bond. Shortly afterwards a compromise was effected, signed by attorneys of the parties respectively and filed of record in the case, as follows, to wit: "December 7th, 1876, per writing filed this case compromised on the following conditions: 1st. That plaintiff allows a credit on the bond sued on, of $6,045.45, and defendant confesses judgment to plaintiff for the sum of six thousand six hundred and forty-six dollars and nine cents, ($6,646.09) and defendant in consideration of the above credit, (said credit being in excess of plaintiff's bid at sheriff's sale of the property of defendant sold to plaintiff on levari facias, No. 260, July Term, 1876) hereby withdraws all objections to said sheriff's sale, and furthermore hereby...