Brown v. Nickle

• Decision Date: 18 October 1847
• Citation: 6 Pa. 390
• Parties: BROWN <I>v.</I> NICKLE.
• Court: Pennsylvania Supreme Court

Page 390

6 Pa. 390

BROWN v. NICKLE.

Supreme Court of Pennsylvania.

September 14, 1847.

October 18, 1847.

Sept. 14.

IN error from the District Court of Allegheny county.

Dunlap and Woods, for plaintiff in error.—Time may certainly be made of the essence of the contract, as in this case it was; Shaw v. Turnpike, 2 Penna. Rep. 454; Dauchy v. Pond, 9 Watts, 51; Power v. North, 15 Serg. & Rawle, 12. It was therefore a question for the jury, whether this agreement was a mortgage or a conditional sale; Kerr v. Gilmore, 6 Watts, 405; Conway v. Alexander, 7 Cranch, 218. In neither case, however, is the judgment conclusive; Stevenson v. Keppinger, 5 Watts, 422; Seitzinger v. Ridgway, 9 Watts, 496.

Mahon and Washington, contrà, cited Estep v. Hutchman, 14 Serg. & Rawle, 435; Kane v. Fisher, 2 Watts, 253; Griswold v. Stewart, 4 Cowen, 459; Colwell v. Woods, 3 Watts, 196; Kerr v. Gilmore, 6 Watts, 405; Adams v. Barnes, 17 Mass. 365; Garvin v. Dawson, 13 Serg. & Rawle, 247; Act 21st April, 1846, Dunlop's Dig. 969; Act 13th April, 1807, sec. 4, (Purd. 334.)

Oct. 18. PER CURIAM.

The cases of Colwell v. Woods and Kerr v. Gilmore, the latter of which pushed the doctrine to its verge, rule the present too imperatively to be resisted. In the first of them it was determined that a conveyance and simultaneous covenant to reconvey on repayment of the purchase-money before a given day, must be construed to be a mortgage, though it appear by parol that the parties did not intend it to be so; and in the second, that it is not competent to the parties to prove by parol that the defeasance was a subsequent and independent agreement. These cases are not to be resisted; yet we must suppose that there may be, in some shape, and under some circumstances, such a thing as a conditional sale. But the proof proposed in this instance was not of distinctive acts which constitute it, but of the understanding of the parties. Their understanding, however, must be gathered from the writing; and if that be ambiguous on the face of it, it cannot be gathered from parol proof. If there is no patent ambiguity in the instrument, constituted as it was by the conveyance and a separate defeasance, they must nevertheless abide by the legal effect of it. The evidence of mere misapprehension, therefore, was properly rejected.

But the direction was erroneous. Subsequent to the decision of this court, in Seitzinger v. Ridgway, 9 Watts, 496, the legislature enacted that a party should not be barred...