Jessop v. Ivory , 172 Pa. 44 ( 1895 )

Opinion by

Mr. Justice Mitchell,

The main contention of appellant that the jury should have been directed to find a verdict in his favor, was decided adversely to him when the case was here before, 158 Pa. 71. The plaintiff’s action was upon a parol agreement to take back the stock and refund the price paid if the purchaser should become dissatisfied, and desire to rescind. The defense was a denial of the contract set up, and in corroboration of that denial, an averment that the contract was in writing and contained the only condition on which it was to be rescinded. This paper was not produced but appellant gave evidence of its contents. The question was therefore necessarily for the jury to decide whether the real contract was as the plaintiff or as the appellant claimed. When the case was here before we were obliged to hold that the court below had not given the writing its proper weight in putting it before the jury, but we said clearly that it was a matter for the jury, with instructions that the writing is presumed to contain the whole contract between the parties, and they must so find unless satisfied by clear and convincing evidence that another part of the agreement was in fact made at the time but omitted from the writing by fraud, accident or mistake. The learned judge gave this instruction to the jury by the affirmance of defendant’s fourth point. He could not have gone further and directed for the defendant, because the writing not being in evidence the burden of proving its contents was on the defendant, and his testimony on that subject was inferentially if not expressly denied by the plaintiff. In this class of cases it is common experience that the lay mind takes a different view from the legal one. Juries nearly always give more weight to the words of the living witness before them, than they do to the writings made even by the same witness at another time. It is quite probable that in the present case the verdict was against the weight of the evidence, but it was a question for the jury, they were rightly instructed as to the law, and the correctness of their verdict was for the court below, not for us, to determine.

On the present argument the learned counsel for the appellee called our attention to the fact that the writing in question was not an agreement signed by the parties, but merely a receipt by the defendant, and therefore the rule as to the modification of written agreements by parol evidence, should not apply. The distinction is well founded, and if the verdict had gone the other way we should probably be obliged to hold in favor of the appellee that the rule was laid down too strictly against him. But the substance of the charge, that the writing, when admitted or proved, is presumed to contain the whole agreement of the parties, was entirely correct, and if the requirements of the evidence to overcome the presumption were stated too strongly it was an error in appellant’s favor which affords him no just ground of complaint.

The other branch of the defense, that even if the contract was as plaintiff claimed, he had waived his rights by acts of ownership subsequent to the alleged breach, was fully discussed when the case was here before, and the learned judge appears to have followed the opinion of this court closely in his charge and his answers to the points.

The refusal of a change of venue is not reviewable except for abuse of discretion of which there is not the slightest hint here: Felts v. R. R. Co., 160 Pa. 503.

Judgment affirmed.