Philadelphia & D. C. R. Co. v. Conway
| Decision Date | 05 October 1896 |
| Docket Number | 139 |
| Citation | 177 Pa. 364,35 A. 716 |
| Parties | Philadelphia & Delaware County Railroad Company v. Thomas Conway, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 9, 1896
Appeal, No. 139, Jan. T., 1896, by defendant, from judgment of C.P. No. 3, Phila. Co., Sept. T., 1894, No. 73, on verdict for plaintiff. Affirmed.
Assumpsit on a stock subscription. Before FINLETTER, P.J.
The action was based upon the defendant's subscription to the following instrument in writing:
The facts of the case appear by the opinion of the Supreme Court.
The jury were instructed to return a verdict for the plaintiff for $1,775.17, and to answer this question:
"Was the statement made to the defendant that a station should be placed upon his, or the adjoining property?"
The jury answered the question, "Yes."
Verdict and judgment for plaintiff for $1,775.17. Defendant appealed.
Error assigned was in entering judgment for plaintiff.
Judgment affirmed.
V. Gilpin Robinson, for appellant. -- The evidence showed that the terms of the subscription as to securing the right of way free of cost to the plaintiff company were not carried out: Caley v. Phila. & Chester County R.R., 80 Pa. 368; Plank Road Co. v. Arndt, 31 Pa. 319; Indiana & Ebensburg Turnpike Co. v. Phillips, 2 P. & W. 196.
The evidence shows and the special finding of the jury establishes that the subscription of the defendant was made upon the agreement that a station should be established upon the adjoining property, which agreement was not carried out: Caley v. P. & Chester R.R., 80 Pa. 370.
The representations of the agent at the time of the procuring of the subscription are evidence as bearing upon the terms and conditions of the contract of subscription: Rinesmith v. People's Freight Ry., 90 Pa. 262; Bucher v. D. & M.R.R., 76 Pa. 311; Pittsburg & Connellsville R.R. v. Stewart, 41 Pa. 55.
John Hampton Barnes, with him George Tucker Bispham, for appellee. -- The term "subscription" implies a writing, and cannot be proved by parol until the absence of the subscription paper has been accounted for; nor can any parol agreement or condition made before or contemporaneous with the subscription be set up to vary its terms: Cook on Stock and Stockholders, sec. 137; Miller v. H.J. & S.R.R., 87 Pa. 95; McClure v. P.F. Ry., 90 Pa. 269; Guarantee Co. v. Mayer, 141 Pa. 511; E.I. & C.S.R.R. v. Posey, 12 Ind. 363; Eakright v. L. & N.J.R.R., 13 Ind. 404; Ellison v. M. & O.R.R., 36 Miss. 572; Scarlett v. Academy of Music, 46 Md. 132; N.C.R.R. v. Leech, 4 Jones, L.R. 340; Braddock v. Phila. M. & M.R.R., 45 N.J.L. 363; P. & L.R.R. v. Stewart, 41 Pa. 54; Caley v. P. & C.R.R., 80 Pa. 363; McCarty v. R.R., 87 Pa. 332; Rinesmith v. People's Freight Ry., 90 Pa. 262.
The alteration in the terms of the subscription paper (if any) was a change in favor of the defendant. It was in relief of himself and the other individual subscribers; and simply operated as an assent by their cosubscriber, the Pennsylvania Railroad Company, to the performance of a condition, upon which it alone had the right to insist, in a manner satisfactory to it.
Before STERRETT, C.J., GREEN, WILLIAMS, DEAN and FELL, JJ.
The contract, upon which this action was brought, is in writing and signed by the defendant and many others. It is a contract of subscription to the stock of the plaintiff company. It contains certain express stipulations definitely stated as to the meaning of which there is no controversy. But the defendant alleges, and so testified himself, that there were certain oral terms stated and agreed upon between him and Mr. Stewart Wood, who procured the defendant's subscription, and claims that these terms were not performed, and that he was therefore released from his subscription contract, and was at liberty to withdraw from it, and refuse to pay, which he did. The material question in the case is whether these oral terms can be treated as a part of the subscription contract, so that their nonperformance by the defendant will constitute a defense. We think not. Substantially the oral terms were, according to the allegation of the defendant, that there should be a station upon the property adjoining the property of the defendant; and that his subscription was made and taken "with a view of the old road being adopted as far as practicable." The plaintiff, in his testimony, states these two matters in this way:
It must be confessed that the latter of these alleged stipulations was quite indefinite, and the subsequent testimony of the defendant indicated that but little consequence was attached to it. He testified that when he discovered that the station was not to be built upon the property adjoining his land, he notified the plaintiff that he would not pay his subscription, thus indicating that the inducing cause of his refusal to pay was that the station was not to be built at the place where he testified it was agreed to be built. It will be observed that it is not claimed by the defendant that these oral terms were to be inserted in the contract of subscription as a part thereof and then left out either by fraud, accident or mistake. It is simply alleged that they were additional terms of the contract made in parol. He also said that they induced him to sign the written contract. It will at once be seen that the defendant's case is subject to the fatal objection that it is supported only by his own oath, while against it, are the written contract and the flat and positive denial of Mr. Wood, the person with whom, as the defendant testifies, the parol terms were agreed upon. All the authorities concur in holding that in such circumstances the written contract prevails. There must be more than an equilibrium of verbal testimony to destroy a written contract. The principle is so familiar and the authorities are so numerous that it is unnecessary to cite them.
Independently of that consideration there is another principle and another line of decisions, which of their own force defeat...
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