Potter v. Grimm

• Decision Date: 15 March 1915
• Docket Number: 213
• Citation: 248 Pa. 440,94 A. 185
• Parties: Potter v. Grimm, Appellant
• Court: Pennsylvania Supreme Court

94 A. 185

248 Pa. 440

Potter v. Grimm, Appellant

No. 213

Supreme Court of Pennsylvania

March 15, 1915

Argued October 7, 1914

Appeal, No. 213, Oct. T., 1914, by defendant, from judgment of C.P. Lawrence Co., Dec. T., 1913, No. 44, on verdict for plaintiff, in case of Sarah A. Potter v. Ida Grimm. Affirmed.

Assumpsit on a contract for the sale of land. Before PORTER, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $2,583.33 and judgment thereon. Defendant appealed.

Errors assigned were rulings on evidence, instructions to the jury and the entry of judgment on the verdict.

The assignments of error are overruled and the judgment is affirmed.

A Martin Graham, with him Martin & Martin, for appellant. -- The admission of evidence of the parol agreement to vary the written contract was error without a showing that it was omitted from the written contract by fraud, accident, or mistake: Krueger v. Nicola, 205 Pa. 38; Shafer v. Senseman, 125 Pa. 310; Lyon v. Miller, 24 Pa. 392; Thorne, McFarlane & Co. v. Warfflein, 100 Pa. 526; Jessop v. Ivory, 158 Pa. 71; Yaryan Co v. Penna. Glue Co., 180 Pa. 480; Baker v. Flick, 200 Pa. 13; Irvin v. Irvin, 142 Pa. 271; Barnhart v. Riddle, 29 Pa. 92; Martin v. Berens, 67 Pa. 459; Lewis v. Brewster, 57 Pa. 410; Smith v. National Life Insurance Co., 103 Pa. 177; Wodock v. Robinson, 148 Pa. 503.

Robert L. Wallace, for appellee. -- The execution of the written agreement was induced upon the faith of the oral agreement made at the time and the evidence thereof was consequently admissible: Ferguson v. Rafferty, 128 Pa. 337; Thomas v. Loose, 114 Pa. 35; Wanner v. Landis, 137 Pa. 61; Spencer v. Colt, 89 Pa. 314; Clinch Valley Coal & Iron Co. v. Willing, 180 Pa. 165; Martin v. Fridenberg, 169 Pa. 447; Martin v. Kline, 157 Pa. 473; Juniata Bldg. & Loan Assn. v. Hetzel, 103 Pa. 507; Keough v. Leslie, 92 Pa. 424; Gandy v. Weckerly, 220 Pa. 285; Faux v. Fitler, 223 Pa. 568; Fidelity & Casualty Co. v. Harder, 212 Pa. 96; Keller v. Cohen, 217 Pa. 522; Greenawalt v. Kohne, 85 Pa. 369; Croyle v. Cambria Land & Improvement Co., 233 Pa. 310; Alexander v. Righter, 240 Pa. 22.

Before BROWN, MESTREZAT, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. CHIEF JUSTICE BROWN:

On October 1, 1912, Sarah A. Potter, the appellee, entered into an agreement, in writing, to sell a farm to Ida Grimm, the appellant. The purchase price fixed in the agreement was $2,000, but, as a matter of fact, the vendor was to get $3,000 for the property. This was the price she asked for it, and the inducement which led her to execute the written agreement was a promise made to her by the appellant, through an authorized agent, to pay, in addition to the $2,000, such sum as, added to land damages to be awarded to her for the location of a public road through the property, would make up the additional $1,000. The verdict of the jury established the fact that such parol contemporaneous promise was made by the appellant, and that, upon the faith of it, the appellee signed the written agreement. The county of Lawrence paid the appellee $500 as damages for the location of the road through the farm, and she thereupon demanded of the appellant $2,500 as the balance of the purchase-money, and offered to execute a deed upon the payment of that sum. This the appellant refused to pay, tendering but $2,000 and demanding the delivery of a deed to the property. This action was then instituted for the recovery of $2,500, the balance of the purchase-money claimed by the appellee, and a jury found that she was entitled to it. The question of her right to recover a sum in excess of that fixed in the written agreement was submitted to the jury in a charge wholly free from error and couched in words so plain that the well-settled rule of law relating to the transaction could not have been misunderstood. The instructions were that the plaintiff was not entitled to recover more than the $2,000, unless the jury found as a fact, from testimony which they regarded as clear, precise and indubitable, that the alleged contemporaneous parol agreement had been made by the appellant, and that, upon the faith of it, the appellee had signed the written contract.

On this appeal from the judgment entered on the verdict in favor of the plaintiff below the only question raised by the several assignments of error is as to the right of the plaintiff to recover anything in excess of the sum of $2,000, and the complaint of the appellant is that the court admitted evidence in support of the alleged parol contemporaneous agreement. If the case were one in which the plaintiff was seeking to recover on the ground that the parol agreement had been omitted from the written contract by fraud, accident or mistake, counsel for appellant might well contend that the appellee was bound by her written agreement, but such is not the case as presented by her in the court below. The parol agreement was not omitted from the written one by fraud, accident or mistake. This is a fact found by the jury. What the purpose was in omitting it may be readily conjectured. The vendee wished to pay as much less than $3,000 for the property as possible, and it may very naturally have occurred to her that, if it should be known she was to pay $3,000 for it, a jury, in assessing damages to the appellee, might take this fact into consideration and lower them accordingly. This would have been to the obvious disadvantage of the appellant, and it can, therefore, be well understood why she may have much preferred that the written agreement should not disclose what she was actually to pay for the property. The case as made out by the plaintiff was one in which a material matter inducing her to sign the agreement had been omitted from it, in pursuance of an understanding between her and the vendee. The corroborated testimony of the plaintiff, believed by the jury, was that the parol contemporaneous agreement was what induced her to sign the contract, and that she would not have signed it but for the oral promise of the appellant to pay her, in addition to the $2,000, the difference between $1,000 and the sum to be awarded to her for land damages, so that she should receive $3,000 for the property -- the price which she insisted and the appellant agreed she should receive. That the appellant cannot now commit a fraud upon the appellee by attempting to use the written agreement in violation of the parol contemporaneous promise which induced her to sign the writing is well settled by a long line of cases: Caulk v. Everly, 6 Wh. 303; Shughart v. Moore, 78 Pa. 469; Greenawalt v. Kohne, et al., 85 Pa. 369; Johnson v. Blair, 126 Pa. 426; Fidelity and Casualty Company v. Harder, 212 Pa. 96; Keller v. Cohen, 217 Pa. 522; Gandy v. Weckerly, 220 Pa. 285; Faux v. Fitler, 223 Pa. 568. It seems that we must again reannounce the rule laid down in the foregoing and many other cases.

From Hurst's Lessee v. Kirkbride, decided in 1773, and referred to by TILGHMAN, C.J., in Wallace v. Baker, 1 Binney 610, this court has, through all the intervening years, uniformly held that parol evidence is admissible to show a verbal contemporaneous agreement, upon the faith of which a written instrument was executed, even though such evidence may vary or change the terms of the same. In the comparatively recent case of Croyle v. Cambria Land and Improvement Company, Limited, 233 Pa. 310, the issue submitted to the jury was whether the plaintiff, in executing and delivering to the defendant a deed of release for a right of way over his land for a thoroughfare, did so in reliance upon a contemporaneous parol promise made by the defendant company that it would, within a fixed period, so fill a flat or lowland on plaintiff's lot at either side of a road to be constructed as to bring it to a level with the surface of the thoroughfare. As it was not alleged in either the statement of the cause of action or in any of the offers of evidence that the parol promise had been omitted from the deed of release by fraud, accident or mistake, evidence as to it was objected to as incompetent. The admission of such evidence was the only matter assigned for error on the appeal of the defendant from the judgment entered against it. In holding that the evidence was competent, we said, through Mr. Justice STEWART: "No case could better illustrate the wisdom of the policy adopted in this State at a very early period, and since steadfastly adhered to, of excepting out of the operation of the English rule excluding parol evidence to vary, contradict, or alter a written contract, cases where a contemporaneous parol promise is proposed to be shown, on the faith of which the contract was executed. Here was found no fraud in connection with the execution of the contract to be relieved against. The promise to do something over and above what was expressed in the writing and which induced the signing of it by the plaintiff was honestly made, or, if otherwise, fraudulent purpose in connection therewith, as an undisclosed intent, was absolutely incapable of proof. The English rule in its strictness would exclude all evidence of the promise, notwithstanding a subsequent refusal by defendant to observe its promise, while holding on to what it obtained by reason of it, would be quite as much a fraud on the plaintiff as any willful suppression or misrepresentation of fact in connection with the making of the instrument; and notwithstanding the certain result that defendant would be left secure in the enjoyment of plaintiff's property, which it had not paid for, because of the law's inability to compel it to keep and observe the promise on the faith of which it had obtained the property. It was this manifest inadequacy...