Miller v. Fichthorn

• Decision Date: 01 January 1858
• Citation: 31 Pa. 252
• Parties: Miller versus Fichthorn.
• Court: Pennsylvania Supreme Court

31 Pa. 252

Miller versus Fichthorn.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Mifflin county.

Parker, Benedict, and Reed, for the plaintiff in error.

Alexander and Woods, for the defendant in error.

The opinion of the court was delivered by LOWRIE, C. J.

The embarrassing complication of principles that has to be contended with, in relation to the mixture of oral and written evidence in the trial of causes, has necessarily given rise to great variety of judicial administration. Much of this arises from the natural and inevitable variety of method that exists in dealings; especially among persons whose principal occupation does not lead them to the knowledge and adoption of the customary forms that naturally grow up among trading men.

This ignorance of the usual forms of doing a given business may often lead persons into difficulties; yet, when they are not strictly bound by them, and the form is free, the courts ought to endeavour to understand their transactions, whatever may be their form, and to execute their true intention. Even in the practice of the law, directed as it is by usages, rules, and statutes, irregularities are inevitable, and very often the courts are constrained to overlook them, in order to get at the very spirit and merits of the cause.

In the effort to prevent the intention of parties from being lost, in the informal and deformed methods taken to express it, many decisions necessarily take place which are very difficult of generalization so as to be placed under a rule. The very variety that naturally exists, where there is no law or custom that imperatively prescribes the form, makes all generalization a very slow and insecure process. In the law and in other social affairs, such generalizations are simply inductions from our experience, and are therefore necessarily subject to modification and correction according to our more enlarged experience, and to the changes that are constantly taking place in our customs and institutions.

The old rule of Bacon (Maxims, Reg. 25), founding the admissibility of parol evidence, along with written, on the distinction between latent and patent ambiguities in the writing, was, no doubt, as good a generalization of judicial experience, on this subject, as could then be framed; but it is now regarded as of no value. Bacon himself applied it only to deeds and wills, so as to prevent property from passing "without deed, which the law appointeth shall not pass but by deed;" and in this limited sense it is generally true; yet then it means no more than this:

Where the law requires a writing, the rights, and the persons by and to whom they are to be passed, must be defined in the writing with such degree of precision that one may, with reasonable certainty, apply it, on knowing the circumstances of time and place.

General rules on this subject, beyond the instances where statutes require a writing, are of very difficult induction, because they have no foundation except the customs of the country and the presumptions growing out of the ordinary modes of doing business; and this is essentially a shifting one. Yet the desire to generalize such transactions is natural to every mind that is in the habit of considering them. Custom itself is but a form of generalization, and legal presumptions mostly result from it. Imperfect as our legal generalizations are, they often furnish us with rules of great working value, even when they cannot be used without some study of their fitness.

And there is no class of society that so much needs to keep itself free, within the bounds of a technical training, as those who are concerned in the administration of juridical affairs; for they have to deal with and manage the ever-changing matters of a whole community, consisting of all degrees of intelligence, and of all classes of occupations, doing their business in all sorts of ways. It is the right of a free people so to deal; and those who participate in judging their acts, are to find out and apply the pattern by which they act, and not to furnish it. Thorough training can best accommodate itself to the practical affairs of society, by respecting the fact that others, of less or different training, must have liberty to act according to the training that they have, within the recognised limits of social morality, and must be judged accordingly. In constructing, as well as in following, generalizations of social action, we may move freely along the highway of juridical experience, without being bound to keep in the ruts worn in it by those who have gone before us.

Every juridical act may be said to consist of the ascertainment and interpretation of facts, for the purpose of defining the relations of contesting parties, and the reciprocal rights growing out of those relations; and, like the process of observation and generalization in other departments of science, it is double in its essence: proceeding, according to the rule of res gesta, from a full observation of all the facts and circumstances of a disputed transaction to an accurate definition of its character: 17 State R. 283; 28 Id. 504. A written instrument may prove only a part of the transaction, and then, by the rule of res gesta, which is a universal rule of investigation, the other parts must be investigated by whatever evidence is proper for them.

A writing, as evidence of a relation or right, must be either direct or indirect evidence of it. Statutes, ordinances, wills, assignments for the benefit of creditors, conveyances and other contracts, which declare the right or relation, are direct evidence of it. Letters, contracts inter alios, or de aliis rebus, or any other writings demonstrative of facts relevant to the matter in controversy, and tending to show its true character, are indirect evidence of it. All kinds of direct written evidence, statutes, and private writings, are alike in this, that they declare the law of the relation, or part of it, and are to be interpreted by the judge, and not by the jury. He has been trained to that very business, and is chosen and commissioned because of his training; whereas, a jury is drawn by lot for the particular occasion, and simply to aid in finding the facts. In this, the duty of the judge is exclusive of the jury, because for this his education and his office are superior. It is on the same principle that, when we want evidence relating to particular occupations, we do not call on commodores to tell us of the art and customs of carriers, nor on farriers for those of farmers, nor on physicians for those of fishermen.

The indirect written evidence of a relation is usually accompanied by oral testimony, aiding or rebutting the inferences desired to be drawn from it; and all such evidence usually goes to the jury together, as evidence on the disputed question; and this was the meaning of Chief Justice GIBSON, when he said that "an admixture of parol with written evidence draws the whole to the jury:" 1 Pa. R. 386. In relation to indirect written evidence, the judge's duty of interpretation is usually fulfilled in declaring that the writing is, or is not, relevant, and does or does not tend to prove the matter in dispute.

As a preliminary to every question of interpretation of a writing, it must be proved or assumed that it is genuine and authentic; that it is free from fraud in its creation; that the makers of it were competent; that the subject-matter of it is lawful, and that it is executed according to law; and for these purposes parol evidence is proper, in order to put the instrument into the hands of the judge for interpretation and construction.

Now, it is essential to all language, that it should have objects, material, spiritual, or ideal, to which it applies; and, as it cannot apply itself to its objects, it is essential that some mind should be sufficiently informed to make the application; else the writing is senseless. Like the index board at the cross-roads, the word without its pointer is nothing. Hence it follows, that:

In the very nature of things, the judge must receive, by admissions or by testimony, all the information that is necessary, in order to put him into a position to interpret and construe the writing with intelligence; that is, to apply it to persons, things, and events, according to the intention under which it was written.

This proposition is applied to every kind of writing, ancient and modern, legal and moral, historical and scientific, and is often expressed in some such terms as these: —

The interpreter must, as far as possible, place himself intellectually in the same circumstances of time and place, as the author of the writing was in when he wrote it; in order to enter into sympathy with him, and be able to reveal the thought, which ignorance of those circumstances must render indistinct and doubtful.

This may be illustrated by the case of a will. When it was written, the objects of the testator's thoughts were his estate, and his family or friends to whom he desired to leave it. To the judge, all these matters must be explained by admissions or by testimony, else he cannot apply it. If the testator appear in his will to have expressed himself defectively, a clear knowledge of the persons, things, circumstances, and usages that he most probably had in his mind when he made the will, may remove all doubt. So it is with a statute that is difficult of interpretation: a clear view of the old law, and of the mischiefs that existed under it, may make the interpretation of the new one quite obvious. In this latter case, however, the judge seeks the extrinsic information for himself, 1 Anstr. 39; in the former,...