Halberstadt v. Bannan
Halberstadt v. Bannan
Opinion of the Court
Opinion by
The difficulty in the way of the plaintiff’s contention, sustained by the court below, is twofold. In the first place there is no ambiguity in the contract declared upon, to be explained by parol evidence, and, in the second place, the effect, if any,
The real object, however, of the testimony, was not to explain, but to reform, or add to the contract. The plaintiff admitted that he was to bear half of the expense of making such boilers as the defendant should personally manufacture, and therefore as to such the provision must stand as written. None had been so manufactured, but all had been ordered from Boyer and paid for by the defendant, who had not been reimbursed by collections from patrons. To escape from liability for one half of the expense of the boilers that had not been paid for by patrons, and at the same time come in under the terms of the contract as to division of profits, the plaintiff must read into the contract a further stipulation. Neither fraud, accident nor mistake Avas alleged, but something like an attempt Avas made to prove, by the unsupported oath of the plaintiff, a cotemporaneous parol agreement inducing him to execute, or accept the written contract. It would be a waste of time to consider whether his testimony Avas sufficiently clear and precise upon this subject to entitle it to be submitted to the jury. Unsupported as it was, and contradicted by the oath of the defendant,
Declarations of persons for whom work was done by the defendant, as to their dissatisfaction, were not evidence, nor should the fact that they resisted payment be permitted to prejudice the defendant, unless their resistance was effectual, and that upon the ground of negligence in the performance of the work, not of the unsuitableness of the boilers.
The judgment is reversed, and a venire facias de novo is awarded.
Reference
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- Written contract—Parol evidence to vary—Oath against oath. Where the plaintiff alleges that a eotemporaneous parol agreement induced him to execute or accept the -written contract, his unsupported oath to that effect, contradicted by the oath of the defendant, is insufficient to entitle him to have the question submitted to the jury: Thomas v. Loose, 114 Pa. 35, and Jackson v. Payne, Id. 67, applied. Written contract—Construction of—“ Expense ofmaldng ” held to include cost of purchase. A written contract “to divide equally the expense oi making the American Steam Heater, and the profits on the same, on all heaters sold ” in a certain territory, calls for a division of the cost of heaters purchased as well as of those made. Profits—Evidence—Declarations of purchasers—Resistance of payment. On a suit for a share of the profits under such contract, where it was the duty of the defendant to furnish and put up the heaters, declarations of persons for whom work was done by defendant, as to their dissatisfaction, are not evidence to charge him with the amount of their unpaid bills on the ground of his negligent performance of the work; nor should the fact that they resisted payment be permitted to prejudice the defendant, unless their resistance was effectual and on the ground of defendant’s negligence.