Martin v. Berens

• Decision Date: 27 February 1871
• Citation: 67 Pa. 459
• Parties: Martin and Monroe <I>versus</I> Berens.
• Court: Pennsylvania Supreme Court

67 Pa. 459

Martin and Monroe versus Berens.

Supreme Court of Pennsylvania.

February 9, 1871.

February 27, 1871.

February 9th 1871.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ. READ, J., at Nisi Prius

Error to the District Court of Philadelphia: No. 142, to January Term 1871 P. Archer (with whom was L. C. Cassidy), for plaintiffs in error.—A parol contract may be set up to vary a written instrument: Chalfant v. Williams, 11 Casey 212; Bank v. Fordyce, 9 Barr 275; Barnhart v. Riddle, 5 Casey 96; Musselman v. Stoner, 7 Id. 270; Rearich v. Swineheart, 1 Jones 238; Parke v. Chadwick, 8 W. & S. 98; Christ v. Diffenbach, 1 S. & R. 464; Clark v. Partridge, 2 Barr 13.

The parol promise in the present case, not to exact rent after destruction of the premises, was the inducement to the lessees to execute the lease in its present form, and this inducement, and the attempted fraud in the wrongful use of the lease, opens the door to parol evidence: Miller v. Henderson, 10 S. & R. 290; Hain v. Kalback, 14 Id. 159; Hurst's Lessee v. Kirkbride, cited in Wallace v. Baker, 1 Binn. 616; Miller v. Fichthorn, 7 Casey 252; Renshaw v. Gans, 7 Barr 117; Anspach v. Bast, 2 P. F. Smith 356; Aldridge v. Eshleman, 10 Wright 420.

J. Gerhart, for defendant in error, commented on the authorities cited by the plaintiffs; he also referred to Harbold v. Kuster, 8 Wright 394; Lloyd v. Farrell, 12 Id. 76; Collins v. Baumgardner 2 P. F. Smith 461; Gould v. Lee, 5 Id. 108; Lewis v. Brewster, 7 Id. 414.

The opinion of the court was delivered, February 27th 1871, by WILLIAMS, J.

The parol agreement set up as defence to the rent claimed by the plaintiff below, directly contravenes the terms of the written lease upon which the action was brought. By the agreement, as signed and sealed by the parties, the defendants agreed to pay the stipulated rent of the demised premises in equal quarterly instalments during the continuance of the lease; and they further agreed "to do the rebuilding in case of any accident whatsoever * * * at their own expense, without any claim for damages or restitution or as offset for rent." But in their original affidavit of defence, they aver that "it was the understanding and agreement of the parties that if the said premises were destroyed by fire the rent was to cease and end, the defendants binding themselves only to restore the building as they received it;" and, in their supplemental affidavit, they say, "that before and at the time of the making the said lease and agreement sued on, the plaintiff agreed with the defendants, as part of the said lease and agreement, that though the said premises should be rebuilt by the defendants at their expense, if the same were burnt down or destroyed during the term, yet the said defendants were not to be liable for any rent thereafter, while they so remained destroyed, and were not to pay any further rent to the plaintiff." It needs no argument to show that the alleged parol agreement is utterly at variance with the written lease. It not only changes its legal effect, but it contradicts its very terms. The two agreements, therefore, cannot possibly stand together; one or the other must fall. If the parol agreement is to prevail, the defendants are not liable for the rent which is alleged to have accrued after the premises were destroyed by fire. But can they avail themselves of the parol agreement as a defence to the rent which, by the express terms of the written lease, they stipulated to pay? It is clear they cannot, if they would not be allowed to show on the trial that the parol agreement was in fact made as alleged. The principles which govern the admission of parol evidence affecting written instruments are well established. It may be received to explain and define the subject-matter of a written agreement: Barnhart v. Riddle, 5 Casey 92; Aldridge v. Eshleman, 10 Wright 420; Gould v. Lee, 5 P. F. Smith 99; to prove a consideration not mentioned in a deed, provided it be not inconsistent with the consideration expressed in it: Lewis v. Brewster, 7 P. F. Smith 410; to establish a trust: Cozens v. Stevenson, 5 S. & R. 421; to rebut a presumption or equity: Bank v. Fordyce, 9 Barr 275; Musselman v. Stoner, 7 Casey 265; to alter the legal operation of an instrument where it contradicts nothing expressed in the writing: Chalfant v. Williams, 11 Casey...