Harbold v. Kuster

• Decision Date: 16 March 1863
• Parties: Harbold <I>versus</I> Kuster.
• Court: Pennsylvania Supreme Court

Page 392

44 Pa. 392

Harbold versus Kuster.

Supreme Court of Pennsylvania.

March 16, 1863.

ERROR to the Common Pleas of Berks county.

John Banks, for plaintiff in error, cited: I. Espy v. Anderson, 2 Harris 311; Campbell v. McClenachan, 6 S. & R. 171; Flagler v. Pleiss, 3 Rawle 345. II. Houghtaling v. Lewis, 10 Johns. 297;

Crotzer v. Russell, 9 S. & R. 78, 80; Wilson v. McNeal, 10 Watts 427; Seitzinger v. Weaver, 1 Rawle 384; Creigh v. Beelin, 1 W. & S. 88; Connellogue v. English, 8 Id. 12; Gregory v. Griffin, 1 Barr 212; Decamp v. Feay, 5 S. & R. 327; Wilkins v. Washbinder, 7 Watts 378.

Jacob K. McKenty, for defendant in error, cited and relied on: I. Monon. Nav. Co. v. Fenlon, 4 W. & S. 209; Gilpin v. Consequa, 1 Pet. C. C. Rep. 88; McDermott v. Ins. Co., 3 S. & R. 609; Iddings v. Iddings, 7 Id. 110; Bohlinger v. Eckert, 16 Id. 423; Stine v. Sherk, 1 W. & S. 202; Cozens v. Stevenson, 5 S. & R. 425; Hill v. Gaw, 4 Barr 495; Sennett v. Johnson, 9 Barr 335. II. Backenstoss v. Stahler, 9 Casey 251; Drinker v. Byers, 2 Penna. Rep. 528; Brown v. Morehead, 8 S. & R. 569; Byers v. Mullen, 9 Watts 267; Niel v. Thompson, 4 Id. 405.

The opinion of the court was delivered, March 16th 1863, by THOMPSON, J.

To have admitted the evidence embraced by the first bill of exceptions would have been to disregard the established rule that parol evidence cannot be received to contradict, vary, or alter an instrument of writing: 4 W. & S. 209; 3 S. & R. 609; 7 Id. 110; 16 Id. 423; 7 Casey 252. It was not offered to reform the instrument on the ground of fraud, accident, or mistake, where such evidence is necessarily receivable: 1 W. & S. 192; 5 S. & R. 421; 4 Barr 493; 9 Id. 491; 7 Casey 252; 9 Id. 386. There was no legal ground for its admission, and it was properly rejected.

The agreement for the sale of the land was merged in the deed consummating that sale; but was not merged in regard to that which was not to be consummated by deed, and which was of an entirely different nature, and collateral to it. This doctrine of merger, as applicable to a case of this kind, was fully examined in Backenstoss v. Stahler, 9 Casey 251, and we will not restate it. The charge of the learned judge being entirely in accordance therewith must be sustained, as we see nothing to retract in that case.

As we discover no error in the record, the

Judgment is affirmed.