Lippincott v. Whitman

• Decision Date: 15 January 1877
• Parties: Lippincott <I>versus</I> Whitman.
• Court: Pennsylvania Supreme Court

83 Pa. 244

Lippincott versus Whitman.

Supreme Court of Pennsylvania.

January 9, 1877.

January 15, 1877.

January 9th 1877.

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

Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1877, No. 48.

Aaron Thompson, for plaintiff in error.—That parol evidence may be given to show what passed at the time of the execution of the writing; that it was executed by one party in consequence of the fraudulent conduct or false representations of the other, is well-settled law in this state: Miller v. Henderson, 10 S. & R. 290; Hahn v. Kalbach, 14 Id. 159; Rearich v. Swinehart, 1 Jones 233; Fuller v. Hood, 10 Casey 365; Green v. North Buffalo Township, 6 P. F. Smith 110; County of Schuylkill v. Copley, 17 Id. 386; Powelton Coal Co. v. McKeen, 25 Id. 238; Shugart v. Moore, Id. 469.

The case should have been given to a jury, and the disputed facts there determined, and the plaintiffs not have been permitted to take advantage of their own agreement, which was the motive that induced the giving and execution of the mortgage.

Dallas Sanders, for defendants in error.—Although this court may have gone far in the admission of parol evidence, still no case can be cited to sustain the contention of plaintiff in error, that in the absence of an allegation and proof of fraud, a party may be allowed to directly contradict, by her parol testimony, a written instrument, duly signed, sealed and acknowledged by her.

The cases cited by plaintiff in error do not support her position; for in them either fraud was actually proven, or there was no direct contradiction of the writing. To overturn a written instrument, the evidence of fraud must be clear, precise and indubitable; and where, as here, there is no allegation of fraud, but an attempt is made to set up as a defence a contemporaneous parol agreement which flatly contradicts the sealed instrument sued on, the question should not be submitted to a jury: Fulton v. Hood, 10 Casey 365; Anspach v. Bast, 2 P. F. Smith 356; Hacker v. National Oil Refining Co., 23 Id. 93; Wharton v. Douglass, 26 Id. 273; Pennsylvania Railroad v. Shay, 1 Norris 45.

Mr. Justice PAXSON delivered the opinion of the court, January 15th 1877.

The rule is well settled in Pennsylvania that where equity would reform or set aside a written instrument on the ground of fraud, accident or mistake, parol evidence is admissible to contradict or vary the terms of the agreement as written: Christ v. Diffenbach, 1 S. & R. 464; Iddings v. Iddings, 7 Id. 111; Miller v. Henderson, 10 Id. 290; Parke v. Chadwick, 8 W. & S. 96; Clark v. Partridge, 2 Barr 13; Renshaw v. Gans, 7 Id. 117; Rearick v. Swinehart, 1 Jones 233; Martin v. Berens, 17 P. F. Smith 459; Kostenbader v. Peters, 2 Weekly Notes 531. An exception to the rule exists in the case of commercial paper, which for reasons of public policy cannot be impeached in this way.

The judgment in this case was entered for want of a sufficient affidavit of defence. The plaintiff in error avers in said affidavit that the mortgage sued upon was given by her with the express understanding and agreement that it should be drawn payable three years from date; that she discovered that said mortgage was drawn payable in one year instead of three years; that she remonstrated with the defendants in error about it, and they assured her and agreed upon her signing it that it should be considered as for three years, and would not be enforced before the expiration of that time; that upon this agreement only did she consent to sign the mortgage and that without it she would not have done so. The defendants in error foreclosed the mortgage at the end of a year. No interest was owing and unpaid at that time. If the facts be as stated in the affidavit of defence, and for the purposes of this case we are bound to presume them to be so, it was a fraud upon the plaintiff to foreclose the mortgage at the end of a year. It was an abuse of the instrument that brings the case within the rulings in Renshaw v. Gans and Rearick v. Swinehart, supra. It was...