Croyle v. Cambria Land & Improvement Co., Ltd.

• Decision Date: 02 January 1912
• Docket Number: 185
• Citation: 233 Pa. 310,82 A. 360
• Parties: Croyle v. Cambria Land & Improvement Company, Limited, Appellant
• Court: Pennsylvania Supreme Court

82 A. 360

233 Pa. 310

Croyle v. Cambria Land & Improvement Company, Limited, Appellant

No. 185

Supreme Court of Pennsylvania

January 2, 1912

Argued October 3, 1911

Appeal, No. 185, Oct. T., 1911, by defendant, from judgment of C.P. Cambria Co., Sept. Term, 1909, No. 381, on verdict for plaintiff in case of Frank S. Croyle v. Cambria Land &amp Improvement Company, Limited.Affirmed.

Assumpsit for breach of contract.Before O'CONNOR, P.J.

At the trial it appeared that the plaintiff claimed damages for a failure on the part of the defendant to do certain filling on both sides of a right of way granted by the plaintiff to the defendant, in accordance with a parol agreement alleged to have been made contemporaneously with the execution of the deed of release of the right of way.After the deed of release was offered in evidence the plaintiff offered to prove the parol agreement made by the defendant's agent at the time of the execution of the deed that the low land on each side of the road should be filled in so as to bring it to a level with the road to be constructed.

Objection to this offer was made as follows:

Mr Williams: The deed from the plaintiff to the defendant having been offered and admitted in evidence, counsel for the defendant now object to the admission of a parol contemporaneous agreement made at the time of the execution of the deed to vary, alter, change, modify, or contradict said deed, or to add to the consideration of said deed mentioned, or to prove any consideration other than the consideration therein mentioned for the following reasons:

1.The reading of the deed and the recital therein expressly said that the full consideration for the privileges therein granted are expressed therein, and thereby preclude the proving of any other consideration by parol.

2.The plaintiff's statement does not aver that the parol contemporaneous agreement was omitted from said deed through accident or mistake.

3.The deed purports to contain the full agreement between the parties, especially as to consideration.

The Court: It is not contended that anything was omitted from the written agreement or deed by virtue of any accident or mistake, but it is contended that the plaintiff refused to sign the deed in question, as it was written, until the defendant agreed that if the deed was executed as it stood, that it would make a fill for which the plaintiff contends in this case, and this contemporaneous parol agreement was made, not with the intention of having it placed in the written agreement, as an inducement of the execution of the deed in its present form and it matters not what the contents of the deed were, or what the consideration therein mentioned was, the plaintiff seeks to recover the consideration for the contemporaneous parol agreement in this proceeding.Therefore, we overrule the objection, note an exception, and seal a bill for the defendant company.[1]

Verdict and judgment for plaintiff for $2,465.Defendant appealed.

Error assigned among others was (1) ruling on evidence, quoting the bill of exceptions.

All the assignments are overruled and the judgment is affirmed.

William Williams, with him R. E. Cresswell, for appellant.-- Parol evidence is not admissible to contradict a grant clearly conveyed: 3 Vale's Pa. Digest, cols.8703-8713;Harvey v. Vandegrift,89 Pa. 346;Thomas v. Henderson, 4 Kulp, 390;Jackson v. Payne,114 Pa. 67;Black v. Garrett,2 Leg. Rec. R. 251;Meyers v. Robinson,74 Pa. 269;Shafer v. Senseman,125 Pa. 310;Heebner v. Worrall,38 Pa. 376;Martin v. Berens,67 Pa. 459;Lewis v. Brewster,57 Pa. 410;Cozens v. Stevenson, 5 S. &R. 421;Ellmaker v. Ins. Co.,5 Pa. 183;Jessop v. Ivory,158 Pa. 71;Otto Gas Engine Works v. Pepper,228 Pa. 205;Quaker City Car Advertising Co. v. Meyers,20 W.N.C. 388;Allison v. Kurtz, 2 Watts, 185;Melcher v. Hill,194 Pa. 440;Krueger v. Nicola,205 Pa. 38;Wodock v. Robinson, 148 Pa. 503.

Frank P. Barnhart, with him George E. Wolfe, for appellee.-- Proof of the parol agreement was proper: Gandy v. Weckerly,220 Pa. 285;Faux v. Fitler,223 Pa. 568;McSorley v. Allen,36 Pa.Super. 271;Land-Wharton Co. v. Hughes,37 Pa.Super. 602;Ramsden v. Simplex Foundation Co.,39 Pa.Super. 587;Zeller v. Haupt,41 Pa.Super. 647;Lawrence County National Bank v. Kaufman,44 Pa.Super. 567.See alsoPerkiomen R.R. Co. v. Bromer, 217 Pa. 263.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE STEWART:

The issue submitted to the jury, and by them passed upon, was whether the plaintiff, in executing and delivering to the defendant company a deed of release for the right of way upon and over his land for a thoroughfare, did so relying upon a contemporaneous promise made by defendant's contracting agent that the company would, within a fixed period, which had elapsed before the bringing of the suit, so fill the flat or lowland on plaintiff's lot, at either side of the thoroughfare to be constructed, as to bring it to a level with the surface of the thoroughfare.Because it was not alleged in either the statement of the cause of action or in any of the offers of evidence, that the subject of the alleged parol promise had been omitted from the deed of release through fraud, accident or mistake, the evidence was objected to as incompetent.Its admission is the only matter assigned for error that calls for consideration.It will be observed that the evidence was not offered for the purpose of reforming the contract between the parties.Had it been, it must have been rejected as wholly insufficient for the purpose.Admittedly both parties knew exactly what the deed of release contained, and all that it contained, before it was signed and sealed.This left no possible ground for reformation.As written, untainted by fraud, and standing clear of mistake, it was the contract of the parties to be by each accordingly observed.What was attempted to be shown to the satisfaction of the jury, was that the plaintiff, knowing that the deed of release as prepared imposed no obligation on the defendant to fill the lowland to the level of the thoroughfare, refused to execute it,...