Renwick Bros. & Co. v. Richardson

5 Pa. Super. 202, 1897 Pa. Super. LEXIS 217

• Court: Superior Court of Pennsylvania
• Decided: July 23, 1897
• Docket: Appeal, No. 181
• Status: Published

Opinion

Opinion by

Beaver, J.,

The enlarged powers conferred upon the Supreme Court by the Act of May 20, 1891, P. L. 101, are to be construed and exercised as were those conferred by the Act of April 4, 1877, P. L. 53: Kelber v. Plow Co., 146 Pa. 485. As to the extent to which an appellate court will’ review the action of the court below in a case such as here presented, see Jenkintown National Bank’s Appeal, 124 Pa. 337. On the face of the written evidence and the admitted facts of this case, the plaintiffs were clearly not entitled to maintain their judgment. At the time of the execution hy the defendant of the judgment note upon which the judgment was entered, the plaintiffs gave a written memorandum according to the terms of which the judgment note was to be returned at the expiration of ten months from its date, when notes amounting to $500, given by the defendant to one Gr. F. Miller, for the payment of which the plaintiffs had assumed responsibility, were paid. The plaintiffs admit the signing of this memorandum and admit also the payment of the notes given by Richardson to Miller for which they were responsible within the time mentioned in the memorandum, but claim that the writing did not contain the entire agreement made by the parties at the time. The contemporaneous parol agreement which they claim was made is at variance with the terms of the written memorandum. The testimony of the plaintiff taken at its best, can scarcely be said to nieet and satisfy the requirements of the rule, under which a chancellor can reform a written instrument. The defendant admits that there was more in his agreement with the plaintiffs than is contained in the written memorandum given by them at the time of the execution of the judgment note, but his version of that agreement is entirely different from theirs. If, upon the trial of the case before a jury, the plaintiffs are able to show by more than a single witness and by testimony clear, precise and indubitable that there was a contemporaneous parol agreement varying the terms of the written memorandum which would be such as ought to move the conscience of a chancellor to reform the written instrument, there will still be the question for the jury as to whose version of that parol agreement is the true one. From every point of view, therefore, the court below was undoubtedly justified in making absolute the rule to show cause why the judgment entered by the plaintiff against the defendant should not be opened and the defendant let into a defense. This is the only alleged error and the decree is therefore affirmed.