Commonwealth v. Julius , 173 Pa. 322 ( 1896 )

Opinion by

Mr. Justice Mitchell,

The first three assignments of error are in substance that defendant was not allowed to prove that Giesey, the second guardian of Mrs. Bentzel, might have made a part at least of the money due from Spahr, his defaulting predecessor in the guardianship, by asserting his ward’s title to the land levied upon as Spahr’s, on the ground that it was bought with his ward’s money, and that the second guardian having thus had in his hands the means of payment, and letting it go unclaimed, the sureties of the first guardian were discharged. But waiving the question whether a creditor’s declining to act on a mere notice that as a result of a law-suit he may obtain satisfaction, would under ordinary circumstances discharge a surety, there were two conclusive reasons why no such result should follow in the present case. First, the default, if it was one, of the second guardian could not discharge the sureties of the first guardian from the consequences of a previous default of their principal: Com. v. Brice, 22 Pa. 211; and secondly, the decree of the orphans’ court had fixed the liability and its amount, both as to Spahr and his sureties: Com. v. Gracey, 96 Pa. 70. There was no error therefore in excluding these offers of evidence which would have been irrelevant if admitted.

The real question in the case was whether the release of May 25, 1894, was valid. The appellants with J. S. Shaffer, an uncle of Mrs. Bentzel, went to her house, taking with them the release previously prepared, and in the absence of her husband obtained her signature to it. She alleged that she was induced to sign it by certain false and fraudulent representations, especially that her counsel agreed to the advisability of such a settlement, and that one of them had said she would probably get little or nothing out of her case by further litigation. The appellants denied that any such representations were made, but this being settled against them by the verdict, they now contend that the evidence was not sufficient to justify the court in submitting the question of fraud to the jury. It is quite evident, even from the testimony produced by the appellants, that Mrs. Bentzel desired to consult her husband and her lawyers before making any settlement of her suit, or executing any papers in relation to it, and that her reluctance to do so without consulting them was overcome by representations then made to her. It would not serve any useful purpose to discuss this evidence in detail. It is enough to say that it not only was sufficient to require submission to the jury, but that it would not have supported any other verdict.

It is however further contended that it was error to permit Mrs. Bentzel herself to testify as to the motive or inducement which led her to sign the release, and Spencer v. Colt, 89 Pa. 314, Juniata Building Assn. v. Hetzel, 103 Pa. 507, and Thomas v. Loose, 114 Pa. 35, are cited in support of this contention. That the rule there laid down was entirely sound there is no need to question, but it is very clearly inapplicable to the present case. In Spencer v. Colt, all that was ruled was, in the language of the court, “ everything that was said and done at the time .... was received. The unexpressed intent, motive, or belief existing in Mr. Manser’s mind when he signed the papers could not aid the jury in ascertaining whether the language or conduct of the plaintiff had been such as to create such an intent, motive or belief.” The case is cited and the principle thus stated by the court below in Nat. Bank of Catasauqua v. North, 160 Pa. 303, — “ the ordinary rule as to transactions between men (is) that one’s undisclosed intent is not to affect the other,” — and that opinion was adopted by this court. So in Building Assn. v. Hetzel it was said that “ a party to a contract shall not testify his undisclosed purpose or intention, to nullify words or acts relied on by others, which in themselves prima facie evidence the agreement.” In Thomas v. Loose an offer was made inter alia to prove a certain oral agreement at the time of a written contract, and that “ it was the inducing circumstance on the part of the defendants to sign the agreement.” What this court said was, “ It was competent to prove all that was said and done. It was for the jury to determine from what was said and done at the making of the contract whether the oral agreement, if proved, induced the defendants to sign the written one. The defendants are not permitted to testify their unexpressed intent, motive or belief at the time they signed the contract. The thoughts of one party cannot be proved to bind the other.” This last sentence shows the principle of the rule fairly to be gathered from the cases, “the thoughts of one party cannot be proved to bind the other,” or as it is more fully expressed in Building Assn. v. Hetzel, “ a party to a contract shall not testify bis undisclosed purpose or intention, to nullify words or acts rebed on by others, which in themselves prima facie evidence the agreement.” This however is very different from testifying the fact that false and fraudulent representations were the consideration or inducement to the party’s action. This is one of the facts which is always part of the res gestee, and which it was always competent for the party to prove. And now that the party is a witness there is no sound reason why be should not prove it by bis own testimony so long as be is confined to the facts, and does not undertake to contradict bis words or acts by an undisclosed motive or intent. Such testimony is in exact analogy with the ordinary rule in regard to the proof of a cotemporaneous parol agreement or promise, to vary or even contradict a writing, which requires the party to prove that it was a substantial part of the consideration without which the writing would not have been signed: Honesdale Glass Co. v. Storms, 125 Pa. 268, a fact which no case that I am aware of bolds the party incompetent to prove by bis own testimony, and which can rarely be proved in any other way. An equally close analogy is found in the rule that a vendor seeking to rescind a sale on credit, for fraudulent representar tions as to the buyer’s solvency, etc., must show that except for such representations the credit would not have been given, and no case has been found which bolds that be may not prove this fact by bis own testimony.

In the present case Mrs. Bentzel was called to prove the statements made to her, and they were shown to be not only false and fraudulent, but also of the most persuasive character, being representations of the opinion and advice of her counsel, as well as of her uncle whom she supposed to be acting as her friend. It was almost superfluous in the face of the plain facts to ask her in addition whether they were the moving consideration or inducement to her action, but there was no error in permitting her to say so.

Judgment affirmed.