Greenawalt v. Kohne

• Decision Date: 12 November 1877
• Citation: 85 Pa. 369
• Parties: Greenawalt <I>versus</I> Kohne <I>et al.</I>
• Court: Pennsylvania Supreme Court

85 Pa. 369

Greenawalt versus Kohne et al.

Supreme Court of Pennsylvania.

October 30, 1877.

November 12, 1877.

October 30th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 88.

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Hill Burgwin, for plaintiffs in error.—Parol testimony is admissible to show what passed at the time of the execution of the deeds: Thomson v. White, 1 Dall. 424; Overton v. Tracey, 14 S. & R. 326; Oliver v. Oliver, 4 Rawle 144. Evidence is admissible to prove a parol agreement to release an obligor from personal liability on a bond: Irwin v. Shoemaker, 8 W. & S. 75; Hoeveler v. Mugele, 16 P. F. Smith 348. A written instrument may not only be explained by parol but its terms may be varied or contradicted when it is shown that had it not been for the oral stipulation made at the time, the party affected would not have executed it: Caley v. Philadelphia and Chester Railroad Company, 30 P. F. Smith 370; Kostenbader v. Peters, Id. 438; Graver v. Scott, Id. 94; Lippincott v. Whitman, 2 Norris 244.

M. W. Acheson, for defendants in error.—A written contract may only be varied by parol evidence where it contradicts nothing expressed in the writing: Chalfant v. Williams, 11 Casey 212; Martin v. Berens, 17 P. F. Smith 459. The evidence offered did not propose to show that anything was omitted from the written agreements. They assume that the parties were fully aware of their contents. The effort was to radically change and modify them. Parol evidence to vary a written instrument was held to be inadmissible in the following cases: Harbold v. Kuster, 8 Wright 392; Lloyd v. Farrel, 12 Id. 73; Collins v. Baumgardner, 2 P. F. Smith 461; Anspach v. Bast, Id. 356; Miller v. Fichthorn, 7 Casey 253; Hill v. Gaw, 4 Barr 493; Woods v. Wallace, 10 Harris 171; Lyon v. Miller, 12 Id. 392; Kennedy v. The Erie and Wattsburgh Plank-road Co., 1 Casey 224.

Mr. Justice SHARSWOOD delivered the opinion of the court, November 12th 1877.

We are of opinion that the offers of evidence by the defendant below ought to have been received.

It is agreed that the English rule excluding parol evidence to vary a written contract has not been adopted in this state in all its stringency. The exceptions, indeed, have in many instances almost eaten out the heart of the rule itself; but it is not altogether abolished, as may be seen in Martin v. Berens, 17 P. F. Smith 459, where, in an elaborate opinion, our late lamented brother, Mr. Justice WILLIAMS, exhaustively states the exceptions to the rule. But from Hurst's Lessee v. Kirkbride, decided in 1773 — reported by Chief Justice TILGHMAN in Wallace v. Baker, 1 Binn. 610 — down to the present time, this court has uniformly held, that where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, that parol evidence is admissible, though it may vary and materially change the terms of the contract. Mr. Justice WILLIAMS recognises this in his opinion in Martin v. Berens, for he says, speaking of the case then before the court: "Here there is no allegation in either affidavit that the defendants were induced to execute the lease on the faith of the alleged parol agreement." It would be an affectation of learning to cite all the cases which establish this principle, but to those contained in the argument of the counsel of the plaintiff in error, may be added Miller v. Henderson, 10 S. & R. 290, which is instar omnium, but may be noticed as a case on all fours with the one now before the...