Cullmans v. Lindsay

• Decision Date: 04 October 1886
• Docket Number: 347
• Citation: 114 Pa. 166,6 A. 332
• Parties: Cullmans et al. v. Lindsay et al
• Court: Pennsylvania Supreme Court

6 A. 332

114 Pa. 166

Cullmans et al. v. Lindsay et al

No. 347

Supreme Court of Pennsylvania

October 4, 1886

May 19 1886

ERROR to the Court of Common Pleas of Lancaster county: Of January Term 1886, No. 347.

Appeal of Joseph Cullmans et al. from the judgment of a Justice of the Peace in favor of James Lindsay, plaintiff in the action. The narr filed contained the common counts with a special count on a contract alleging a loss of one hundred and fifty dollars caused by a re-sale of leaf tobacco. Plea, non assumpsit.

The facts as they appeared in the trial before PATTERSON, J sufficiently appear in the opinion of the Supreme Court.

The defendants asked Morin, one of their witnesses, inter alia "Have you authority from Cullmans and Rosenbaum to execute different contracts for the purchase of tobacco, than the one that is furnished you in these blanks?" Objected to; objection sustained, evidence rejected and bill sealed. (First assignment of error.)

The defendants asked Robert K. Lindsay, called by the plaintiff in rebuttal: Were his declarations that this contract amounted to nothing and meant nothing, and that the tobacco would be paid for, as he bought it on sight, was that an inducement to you to sign the contract? Objected to objection sustained, evidence rejected and bill sealed. (Second assignment of error.)

The defendant presented the following points:

"If the jury believe from the evidence that plaintiffs unloaded at defendants' warehouse eleven bales of tobacco, and failed to unload the balance of the tobacco when requested to do so, there was no delivery of any tobacco, and the verdict should be in favor of defendants."

Answer. "The Court affirms this point if you believe the evidence of the defendants, that plaintiffs unloaded at the defendants' warehouse but eleven bales of tobacco, being part only of the lot sold, and failed to unload or deliver the balance when requested to do so, then there was no delivery, and the verdict should be in favor of defendants, unless you find from all the evidence in the case, that the defendants, or some of them were the cause of the non-delivery. In other words, if the plaintiffs delivered part of the tobacco at the warehouse, and were ready and willing to unload or deliver the whole lot according to contract, and the defendants or any of them contended for a change of the contract, or a new contract as testified, and thus caused the plaintiffs to refuse unloading the balance, then it don't follow that the defendant must have your verdict." (Fourth assignment of error.)

5. If the jury believe from the evidence, that plaintiffs did not deliver all the tobacco according to the contract, the verdict should be in favor of the defendants."

Answer. The Court cannot affirm this point -- it reads "if you, the jury, believe from the evidence, that plaintiffs did not deliver all the tobacco according to the contract," -- it does not say what contract -- the written contract, or the contract alleged by the parol, the jury must find under the instructions given by the Court, what the contract of sale was. (Fifth assignment of error.)

Verdict for the plaintiffs in the sum of $197.01, and judgment thereon, whereupon the defendants took this writ and filed, inter alia, the above assignments of error.

Judgment is reversed, and venire facias de novo awarded.

J. L. Steinmetz, for plaintiffs in error. -- On the trial plaintiffs endeavored to materially vary and contradict the written or printed contract, by evidence of a contemporaneous parol agreement. There is no allegation in the narr that the written contract was executed on the faith of the parol agreement, and it is, therefore, doubtful whether the terms and conditions of the written contract could be attacked at all: Callan v. Lukens, 89 Penn. St., 134; Parsons v Adeler, 8 W.N.C., 72.

If plaintiffs will insist on the benefit of a contemporaneous parol agreement, they must declare on it: Hunter et al. v. McHose, 4 Out., 38.

Before plaintiffs can recover in this action they must set aside the written contract and show a delivery. To set aside the written contract there must be clear, precise and indubitable evidence of fraud or mistake, and it is error to submit the question of fraud to the jury upon slight, trivial parol evidence: Stine v. Sherk, 1 W. & S., 195; Miller v. Smith, 9 Casey, 386.

"When parties without fraud or mistake have put their engagements in writing, that is not only the best, but the sole evidence of their agreement." Martin v. Berens, 17 P. F. Smith, 459.

George Nauman, that a written agreement may be modified, explained, reformed, or altogether set aside by parol evidence of an oral promise or undertaking material to the subject matter of the contract made by one of the parties at the time of the execution of the writing, and which induced the other party to put his name to it, must now be regarded as a principle of law so well settled as to preclude discussion. Walker v. France, 2 Amerman, 203.

As the plaintiffs below declared on and proved a parol agreement, much of the argument of the plaintiff in error does not touch the case, and as the defense offered the written or printed paper in evidence it is difficult to see how the question, which is the subject of the second assignment of error, could have been asked except in rebuttal. That the question was proper, is settled in Moore v. H.J. & S.R.R. Co., 13 Norris, 324; Walker v. France, 2 Amerman, 203.

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

OPINION

Mr. Justice CLARK:

This suit was brought to recover the contract price of a certain lot of tobacco, sold by the plaintiffs to the defendants. At the time of the purchase, an agreement partly printed, and partly written, was executed as follows: --

"April 18th, 1883."

"This is to certify that I have this day sold my interest in two acres of tobacco to A.S. Rosenbaum & Co. First wrappers at 14 cents; second wrappers at 4 cents; seconds at 4 cents fillers at 3 cents; to be well selected and free of all damage, such as hail-cut, shed-burnt, fat...