Juniata Building Association v. Hetzel

• Citation: 103 Pa. 507
• Parties: Juniata Building and Loan Association <I>versus</I> Hetzel.
• Decision Date: 01 October 1883
• Court: Pennsylvania Supreme Court

103 Pa. 507

Juniata Building and Loan Association versus Hetzel.

Supreme Court of Pennsylvania.

May 9, 1883.

October 1, 1883.

May 9th 1883.

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

ERROR to the Court of Common Pleas of Bedford county: of January Term 1883, No. 140 ½.

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Alex. King and William M. Hall, for plaintiff in error.— Defendant only testified to his own understanding of his liability, the allegation of a contemporaneous agreement was denied, and a chancellor invariably refuses to decree on the uncorroborated testimony of an interested party in opposition to the oath of the other party: Brawdy v. Brawdy, 7 Barr 157; Moss v. Culver, 14 P. F. S. 414. An instrument of writing can only be contradicted on the ground of fraud, by clear and indubitable evidence: Stine v. Sherk, 1 W. & S. 195; Miller v. Smith, 9 Casey 386; Woods v. Farmare, 10 Watts 195. To sustain the defendant's allegation some representation must be proved to have been made by the officers of the association acting within the scope of their powers: Gass v. Citizens' B. & L. Association, 9 W. N. C. 326.

John Cessna (with whom were Russell & Longenecker and J. B. Cessna), for defendant in error.—We do not attempt to contradict a writing nor ask relief on the ground of fraud or mistake. It was the duty of the association to see that the mortgage was properly executed. Upon a contract of suretyship if the plaintiff does or omits to do any act which his duty requires him to do, and the omission proves injurious to the surety, the surety will be discharged: Story's Eq. Jur. § 325; Brandt on Suretyship §§ 387,200; Strange v. Fooks, 4 Gifford 408; Wulff v. Jay, L. R. 7 Q. B. 756; Watts v. Shuttleworth 5 H. & N. 233; Stratton v. Rastall, 2 T. R. 366. The constitution required that the officers should see that all mortgages were properly executed; and this became part of the contract with the defendant, who, as a surety, is entitled to stand on the strict terms of the contract: Bank v. Barrington, 2 P. & W. 27. If the testimony of a dozen witnesses had differed from that of the defendant, it would still have remained for the jury to determine the questions of fact involved: Devine v. Miller, 37 Leg. Int. 436.

Mr. Justice TRUNKEY delivered the opinion of the court, October 1st 1883.

No principle is better settled than that parol evidence is admissible to show a verbal contemporaneous agreement, which induced the execution of a written obligation, though it may vary or change the terms of the written contract. Therefore it was competent for the defendant to prove, if he could, that it was agreed before and at the time he signed the bond, that it should not be resorted to until after the security of the mortgage was exhausted, and that the security of the mortgage was lost through the plaintiff's negligence. But evidence of the practice or custom of the association in dealing with other persons was incompetent. There was no proof, nor offer of proof, of either a general or local custom; nor was there any usage of trade or previous like dealings between the parties to the bond. It was error to admit so much of the offer which constitutes the first assignment, as relates to and is founded upon an alleged custom.

The facts from which inferences are to be drawn are to be detailed by the witnesses, and the work of inference is for the jury. Under the rule admitting parties to testify in their own behalf, where the character of the transaction depends on the intent of the party, it is competent for him to testify what his intention was. His answer is, of course, not conclusive, but to be considered with other evidence: Thurston v. Cornell, 38 N. Y. 281; Cortland Co. v. Herkimer Co., 44 Id. 22; Snow v. Paine, 114 Mass. 520. Where a plaintiff had conveyed property to his wife, and it was sought to impeach the deed, on the ground that it was fraudulently made, it was held that, inquiry into his intention and motive in making the deed to her being relevant and material, it was competent for him to testify that he made the deed in good faith: Thacher and wife v. Phinney, 7 Allen (Mass.) 146. In a carefully considered case it was remarked that the authorities that intent may be testified show no more than this. When the doing of the act is not disputed, but is affirmed, and whether the act shall be held valid or invalid hangs upon the intent with which it was done, which intent, from its nature, would be formed and held without avowal, then he, upon whom the intent is charged, may testify whether he secretly held such intent when he did the act. This does not apply to the making of contracts, and a party to a contract shall not testify his undisclosed purpose or intention to nullify words and acts relied upon by others, which in themselves prima facie evidence the agreement. Minds cannot meet where one keeps to itself what it means to do. Where the oral bargain goes before the written agreement, signed and delivered without qualification, one of the parties shall not testify that he meant something else: Dillon v. Anderson, 43 N. Y. 231. In that case the defendant alleged a verbal agreement that another person was also to sign the bond, and he was not allowed to answer the question, "Did you intend to make an individual contract?"

In a suit on bonds the defendant was asked in chief: "What was the inducement that led you to sign the bonds and mortgage?" "Did you sign these bonds and the mortgage relying at the time upon the contemporaneous agreement in parol?" "In consequence of the acts and declarations of Mr. Colt, did you sign these papers?" which were overruled, but he was permitted to state all that was said and done before and at the time of the execution of the bonds. This court held that no principle would have justified the court below in admitting such interrogatories; that testimony of the unexpressed intent, motive or belief of the defendant was inadmissible; and that the thoughts of one party to a contract cannot be proved to bind the other: Spencer v. Colt, 89 Pa. St. 314.

The defendant being a witness in his own behalf was allowed to testify that he would not have signed the bond unless it had been agreed...