Krueger v. Nicola

• Decision Date: 05 January 1903
• Docket Number: 195
• Citation: 205 Pa. 38,54 A. 494
• Parties: Krueger v. Nicola, Appellant
• Court: Pennsylvania Supreme Court

54 A. 494

205 Pa. 38

Krueger v. Nicola, Appellant

No. 195

Supreme Court of Pennsylvania

January 5, 1903

Argued November 7, 1902

Appeal, No. 195, Oct. T., 1902, by defendant, from judgment of C.P. No. 3, Allegheny Co., May T., 1901, No. 148, on verdict for plaintiff in case of Oscar E. Krueger v. Frank F Nicola. Reversed.

Assumpsit for breach of an agreement for the exchange of lands. Before KENNEDY, P.J.

From the record it appeared that on July 11, 1900, plaintiff and defendant entered into an agreement for the exchange of land. This agreement was not carried out, and plaintiff brought the present action for the breach. The defendant filed an affidavit of defense in which he averred that plaintiff did not own certain of the lands which he agreed to convey, but that the same was held by a third party with whom there existed an oral agreement that plaintiff should have a conveyance of the land upon the payment of $10,000. The defendant alleged that he was at all times willing to comply with his contract until he discovered that plaintiff made it absolutely impossible for the contract to be carried out. To meet the averments of the affidavit of defense, the plaintiff filed a replication, setting up an alleged cotemporaneous parol agreement to the effect that defendant had agreed to raise the $10,000 to pay for the land plaintiff was to get from the third party, defendant taking a mortgage for it on the land that defendant himself was to convey. It was not averred either in the statement of claim, or in the replication, that the alleged parol agreement was omitted from the written agreement by fraud, accident or mistake. At the trial the court admitted under objection and exception numerous offers of testimony to establish the parol agreement. [8-12]

The court charged in part as follows:

[I desire here to refer to what seems to me to be the most important part for your consideration. The agreement, as it is written, provides for the exchange of the properties, upon the terms which have been detailed to you at great length. It is supposed, when parties enter into a written agreement that it contains the whole of their agreement, or understanding, at the time, and all the negotiations or talk, prior to the time of the actual execution of the agreement, are merged in this agreement. But in this case it is alleged, on the part of the plaintiff, that there was a very important matter not included in this agreement, but clearly understood between them at the time, and that it was to be a part of the agreement; and that that additional agreement between them was part of the inducement, or consideration, which the plaintiff had for the signing or execution of the contract. The oral agreement, or understanding between them outside of the written agreement was, as the plaintiff alleges, a covenant or agreement on the part of Nicola to furnish $10,000 in cash, to be raised by mortgage or mortgages upon these Greenfield avenue lots which were to be conveyed to the plaintiff. The plaintiff alleges that that was the distinct understanding at the time, and that if it had not been so understood, he would not have entered into this agreement at all. He alleges that it was not included in the written agreement, for the reason that the article of agreement was signed late in the evening of July 11, and when they had not time, as was said, to incorporate that in it. They were about to adjourn: the remark was made as the plaintiff alleges, by the defendant Nicola, that it was well understood, and that it would be carried out, although not in the agreement, as explicitly as if it had been incorporated in the agreement. According to the plaintiff's allegation, they separated with that understanding, that this raising of the $10,000 by the defendant Nicola was as much a part of the agreement between them as if incorporated in the papers. The plaintiff, alleging that there was this additional agreement, which, in point of fact, varies the terms of the original agreement, the burden is upon him to satisfy you that this additional oral agreement was made. It is not only his duty to satisfy you from the weight of the testimony, but the burden is upon him to satisfy you that this oral agreement was made, which is not mentioned in the written agreement. He must satisfy you by proof that is clear, precise and indubitable. Unless he has so satisfied you by the testimony, that is the end of this case, and your verdict must be for the defendant. This is the first and most important question for your consideration.]

[If the plaintiff has failed to satisfy you from the weight of the testimony, the burden being upon him, then his case falls. Or, if he fails to satisfy you by evidence or proof that is clear, precise and indubitable, his case falls and your verdict must be for the defendant.]

Verdict and judgment for plaintiff for $22,000. Defendant appealed.

Errors assigned were (3, 4) above instructions, quoting them; (8-12) rulings on evidence, quoting the bill of exceptions.

Judgment reversed.

W. B. Rodgers, with him William M. Hall, Jr., and W. B. Adair, for appellant. -- It was error for the court under the pleadings to admit evidence of any alleged oral agreement: Wodock v. Robinson, 148 Pa. 503; Hunter v. McHose, 100 Pa. 38; Rowand v. Finney, 96 Pa. 192.

D. F. Patterson, with him J. M. Stoner, for appellee. -- That the court below was right in submitting to the jury the question as to the proof of the oral agreement appears from the following cases: Chalfant v. Williams, 35 Pa. 212; Miller v. Henderson, 10 S. & R. 290; Greenawalt v. Kohne, 85 Pa. 369; Lippincott v. Whitman, 83 Pa. 244; Renshaw v. Gans, 7 Pa. 117; Spencer v. Colt, 89 Pa. 314; Graver v. Scott, 80 Pa. 88; Hoopes v. Beale, 90 Pa. 82; Phillips v. Meily, 106 Pa. 536; Campbell v. McClenachan, 6 S. & R. 171; Shugart v. Moore, 78 Pa. 469; Caley v. Philadelphia, etc., R.R. Co., 80 Pa. 363; Barclay v. Wainwright, 86 Pa. 191; Keough v. Leslie, 92 Pa. 424; Martin v. Fridenburg, 169 Pa. 447; Furniture Co. v. School Dist., 158 Pa. 35; Cloud v. Markle, 186 Pa. 614; Laird v. Campbell, 100 Pa. 159; Bown v. Morange, 108 Pa. 69; Walker v. France, 112 Pa. 203.

Before MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE BROWN:

The agreement on which the appellant brought this suit was for the sale, or rather exchange, of real estate. He alleged in the statement of his cause of action his readiness and willingness to comply with the terms of the written contract and claimed damages from the defendant for the latter's failure to perform them. An affidavit of defense was filed in which the defendant averred his willingness to comply with the contract and alleged the inability of the plaintiff to do so on account of obstacles that were set out in detail. A replication was then filed, in which the plaintiff, in answer to the averment in the affidavit of defense that he owed $10,000 upon the property which he was to convey to the defendant, set up...