Finberg v. Burkhardt
| Decision Date | 17 March 1913 |
| Docket Number | 381 |
| Citation | 86 A. 1062,239 Pa. 519 |
| Parties | Finberg, Appellant, v. Burkhardt |
| Court | Pennsylvania Supreme Court |
Argued January 9, 1913
Appeal, No. 381, Jan. T., 1912, by plaintiff, from order of C.P. No. 1, Philadelphia Co., March T., 1912, No. 1169 making absolute rule to open judgment in case of Benjamin Finberg v. Isaac Burkhardt. Reversed.
Rule to open judgment.
The facts are set forth in the opinion of the Supreme Court.
Error assigned was order making absolute rule to open judgment.
The order or decree of the court below is reversed and set aside at the cost of the appellee.
John G Johnson, with him Adolph Eichholz, for appellant. -- Wherever the nature of the parol evidence is such that it merely contradicts the written instrument, such proof will not be allowed in the absence of fraud, accident or mistake: Martin v. Berens, 67 Pa. 459; Leuten Brick Co. v. Killen, 235 Pa. 144; Wolf v. Rosenbach, 2 Pa. Superior Ct. 587; Jones v. Backus, 114 Pa. 120; Irvin v. Irvin, 142 Pa. 271; Stull v. Thompson, 154 Pa. 43; Ridgeway Dynamo & Engine Co. v. Cement Co., 221 Pa. 160; Appleby v. Barrett, 28 Pa.Super. 349.
T. C. McManus, of Wescott, Wescott & McManus, for appellee. -- That the breach of a contemporaneous parol agreement inducing a written contract is a valid defense on the writing, is well established: Gandy v. Weckerly, 220 Pa. 285; Faux v. Fitler, 223 Pa. 568.
Before FELL, C.J., MESTREZAT, POTTER, STEWART and MOSCHZISKER, JJ.
This is an appeal by the plaintiff from an order of the court below making absolute a rule to open a judgment entered upon a bond accompanying a mortgage given by the defendant to plaintiff to secure payment of the balance of purchase money due on certain real estate sold by the plaintiff to the defendant.
The ground for opening the judgment as set forth in the petition for the rule is that at the execution of the articles of agreement for the sale of the real estate and the bond and mortgage there was a parol agreement "that whilst the consideration for the premises purchased by the defendant from the plaintiff was but $6,950, the plaintiff and defendant agreed that the articles of agreement and the bond and mortgage should be made to state a consideration of $13,550"; and further it was understood and agreed between the parties that while the rate of interest to be charged on the deferred payment was five per centum per annum "it would be to his (defendant's) interests in the future sale of these premises to insert the sum of six per cent. as interest on the said bond and mortgage which was accordingly done." The answer to the rule filed by the defendant denied that there was any parol agreement as to the principal or interest entered into by the parties contemporaneously with the execution of the agreement or the bond and mortgage. The learned court below without filing an opinion made the rule absolute, and awarded an issue to determine what amount of money was due upon the bond upon which the judgment was entered. The plaintiff has appealed.
In the language of Mr. Justice GREEN, in Jones v. Backus, 114 Pa. 120, 131, "the case presents nothing but an attempt to substitute a parol stipulation in place of a written one of an entirely different character." There was no sufficient evidence before the court below to warrant it in finding that there was any parol agreement made between the parties at the time of the execution of the contract for the sale of the real estate or at the time of the execution of the bond and mortgage. There was testimony by the defendant and the members of his family, but, with the exception of his own testimony, it referred to matters which occurred prior to the date of the agreement which was made on August 13, 1907. The defendant testifies that only he and the plaintiff were present at the execution of the agreement. He also testified as follows: Subsequently, on September 6th or 7th the parties had a settlement when a statement was signed by both parties. The defendant testifies that the plaintiff said to him on that occasion: After the settlement was made, and on the same day, a notary public took the bond and mortgage to the defendant's house to be signed by him and his wife, and the defendant testifies that the notary then said to him: "You know what Finberg told you, sign your name." The defendant's son was present at the settlement and testifies that Finberg said to his father at that time: "You know what our understanding is and that...
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