Martin v. McCune

• Decision Date: 29 July 1898
• Docket Number: 90-1898
• Citation: 8 Pa.Super. 84
• Parties: S. J. Martin, Appellant, v. J. F. McCune
• Court: Pennsylvania Superior Court

8 Pa.Super. 84

S. J. Martin, Appellant, v. J. F. McCune

No. 90-1898

Superior Court of Pennsylvania

July 29, 1898

Argued May 10, 1898 [Syllabus Matter]

Appeal by plaintiff, from judgment of C. P. Beaver Co.-1894, No 411, on verdict for defendant.

Assumpsit. Before Crawford, P. J., of the 13th judicial district specially presiding.

It appears from the record and evidence that suit was brought by the payee on a promissory note against the maker for $ 400. The defense set up was a parol agreement alleged to be made contemporaneously with the execution of the note by virtue of which the defendant claimed he was not to pay it if he was not successful in running a restaurant.

Other facts sufficiently appear in the opinion of the court.

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned among others were in admitting the following offer on the part of the plaintiff: " Defendant's counsel propose to prove that in the spring of 1893 Samuel Anderson, the father-in-law of the defendant, purchased from the plaintiff the goods in the restaurant of the defendant at East Liverpool, Ohio, for the price or sum of $ 1,000, paying therefor $ 600 cash, $ 500 of which was furnished by the defendant with the knowledge of the plaintiff, and that a note of $ 400 was given for the balance of the purchase money, secured by a chattel mortgage on the goods in the restaurant; that after Samuel Anderson had continued in the business for three or four months the plaintiff in the case, knowing that McCune also had a second chattel mortgage on the same goods for $ 500, sent word to the defendant to meet him in East Liverpool, Ohio, at which meeting plaintiff informed defendant that Samuel Anderson was not meeting with success in the business, and that there was a likelihood that both plaintiff and defendant would lose their money. That he thereupon asked defendant to come and take charge of the restaurant, stating that he (plaintiff) would take it from said Samuel Anderson. That it was agreed between plaintiff and defendant that the defendant would take charge of the restaurant and give his promissory note, which is the note in suit, for the $ 400, with the promise on the part of the plaintiff at the time the agreement was made, that if the defendant should not meet with success in the restaurant business after giving it a trial, that the plaintiff would take the goods off his hands and surrender up the note in suit. This is to be followed by evidence showing that the defendant did take charge of the restaurant, give it a fair trial, and failed to meet with success, and thereupon turned over the whole stock of goods in the restaurant pursuant to the parol agreement that was made at the time the note was signed, and thereupon the note in suit became satisfied and extinguished." In refusing to charge the jury as requested in the third point presented by plaintiff, as follows: " The defendant, having attempted to set up a contemporaneous parol agreement to vary the terms of the note in suit, but there being no sufficient evidence to establish the same, under all the evidence the verdict must be for the plaintiff." In declining to charge the jury as requested in the fourth point presented by plaintiff, as follows: " Under all the evidence in this case the verdict must be for the plaintiff."

Wm. A. McConnel, with him John M. Buchanan, for appellant. -- Evidence of the alleged contemporaneous parol agreement was not admissible to vary the terms of the note in question: Wolf v. Rosenback, 2 Pa.Super. 587; Hill v. Gaw, 4 Pa. 493.

As to the second question, if the evidence was admissible by reason of being an exception to the general rule, then it must be evidence which is clear, precise and indubitable, and such as would compel a chancellor to reform the instrument. Phillips v. Meily, 106 Pa. 536; Martin v. Berens, 67 Pa. 459; Hand v. Russell, 1 Pa.Super. 165.

Even if it was admissible as an exception to the general rule, it was not sufficiently proven. The only evidence which at all tends to prove any parol contemporaneous agreement, is in the testimony of the plaintiff himself immediately after the noon recess, when he was recalled to the stand by his Brawdy v. Brawdy, 7 Pa. 167; Plumer v. Guthrie, 76 Pa. 441; Miller v. Smith, 33 Pa. 386; Martin v. Cerens, 67 Pa. 459.

R. S. Holt of Wilson & Holt, with him L. T. Farr, for appellee. -- The evidence as to the parol agreement was admissible: Rearich v. Swinehart, 11 Pa. 233.

To the same effect is Parke v. Chadwick, 8 W. & S. 96, in which an absolute conveyance was overturned by oral proof, that it was given and accepted as a security for the payment of a debt, and to be surrendered when that was discharged.

And in the same case Mr. Justice Bell said: " It is not essential to the admission of parol evidence that a fraud was originally intended. It is enough that, though the parties acted in mutual good faith at the inception of the transaction, an attempt is made to wrest the instrument to a purpose not contemplated, or use it in violation of the accompanying agreement. It is as much a fraud to obtain a paper for one purpose, and use it for a different and unfair purpose, as to practice falsehood or deceit in its procurement:" Chalfant v. Williams, 35 Pa. 212; Brown v. Morange, 108 Pa. 69.

The existence of a contemporaneous parol agreement between the parties, under the influence of which a note or contract has been signed, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, may always be shown when the enforcement of the paper is attempted. Among the more recent cases in which this has been distinctly declared are: Keough v. Leslie, 92 Pa. 424; Martin v. Kline, 157 Pa. 473; Martin v. Fridenberg, 169 Pa. 447. These cases are not in conflict with Clarke v. Allen, 132 Pa. 40; Zeigler v. McFarland, 147 Pa. 607, for in these cases, the agreement set up was wholly inconsistent with the terms of the note: Coal & Iron Company v. Willing, 180 Pa. 165.

Before Rice, P. J., Beaver, Reeder, Orlady, Smith and Porter, JJ.

OPINION

SMITH, J.

This suit was brought by the payee of a promissory note against the maker. The defense set up was that the plaintiff had been the owner of a restaurant, furniture and fixtures, situate...