Hunter v. McHose

• Decision Date: 13 March 1882
• Citation: Hunter v. McHose, 100 Pa. 38 (Pa. 1882)
• Parties: Hunter & Springer <I>versus</I> McHose.
• Court: Pennsylvania Supreme Court

Page 38

100 Pa. 38

Hunter & Springer versus McHose.

Supreme Court of Pennsylvania.

February 28, 1882.

March 13, 1882.

February 28th 1882.

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

ERROR to the Court of Common Pleas of Berks county: of January Term 1881, No. 71.

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John Stewart (with him A. G. Green), for the plaintiffs in error.—In Pennsylvania it is settled law, that evidence of a contemporaneous parol agreement is admissible to explain, modify or contradict a written instrument, where it is shown that, but for such parol stipulation, the written contract would not have been executed: Hoopes v. Beale, 7 W. N. C. 337; Greenawalt v. Kohne, 4 Norris 375. The rule has been followed in actions of covenant, as well as in assumpsit: Lycoming Ins. Co. v. Sailer, 17 P. F. S. 113; Renshaw v. Gans, 7 Barr 118; Smith v. Farmers & Merchants' Ins. Co., 7 W. N. C. 365; Shepler v. Scott, 4 Nor. 329. Covenant is the proper action to bring on a sealed instrument, when the alleged parol variation is antecedent to or contemporaneous with the execution of the sealed contract; otherwise, where the written contract is varied by a subsequent parol agreement, in which case the whole becomes parol.

Moreover, the evidence should have been admitted to render definite the vague expression in the written covenant, "from the time of commencing operations there," and also as res gestæ, explanatory of the situation of the parties at the time of the execution of the contract with reference to each other and the subject matter of the contract: Addison on Contracts 337.

The averment in the narr. of our intention to rely on the parol agreement was sufficient notice to defendant. We did not allege actual fraud, because the fraud did not exist at the time the agreement was entered into, but consists in the present attempt to exclude from the evidence the one essential condition upon which the plaintiffs entered into the covenant. The averment, however, alleges substantially, if not expressly, mistake in omitting the stipulation as to time from the written paper.

Geo. F. Baer (with him Jeff. Snyder and D. & J. N. Ermentrout), for the defendant in error.—In covenant, the plaintiff must recover on the instrument declared on, or fail. He cannot in this action introduce new covenants on the part of defendant by parol evidence, though the plaintiff's stipulations may be waived by parol: Lehigh C. & N. Co. v. Harlan, 3 Casey 441; Barndollar v. Tate, 1 S. & R. 160; Lyon v. Miller, 12 Harris 392. The offer was inadmissible under the narr., which contained no averment of fraud, accident or mistake: Clark v. Partridge, 2 Barr 13; Partridge v. Clarke, 4 Barr 166. If there was no fraud in the inception of the contract (as plaintiff admits), there can be none in objecting to the admission of illegal evidence.

Chief Justice SHARSWOOD delivered the opinion of the court, March 13th 1882.

Had the...