Gump's Appeal , 65 Pa. 476 ( 1870 )

The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

The finding of the masterthat the provision in the agreement for the payment of interest on $2000 annually, from the 1st day of April 1866, was omitted by the mistake of the attorney in writing the single bill, is sustained by clear and convincing evidence. The objection that the writing cannot be contradicted is unsound. Plain mistake ranks with fraud as an exception to the rule which forbids the admission of parol evidence to qualify or contradict written instruments: Christ v. Diffenbaugh, 1 S. & R. 464; Renshaw v. Gans, 7 Barr 117. The accidental omission of interest from the single bill being shown, the next1 question is that of jurisdiction. The 39th section of the Act of 13th June 1840, Purd. 402, pl. 5, declared that the equity jurisdiction of the Supreme Court within the city and county of Philadelphia and of the Court of Common Pleas for said county shall be extended to all eases arising in said city and county, over which courts of chancery entertain jurisdiction on the grounds of fraud, accident, mistake or account. This act was followed by that of 16th April 1845, the 3d section of which declared that the 39th section of the Act of 1840 shall be construed to give jurisdiction in all eases where chancery entertains jurisdiction under either of the heads of fraud, accident, mistake and account, whether such fraud, accident, mistake or account be actual or constructive. These jurisdictions and powers were extended over the state to the several Courts of Common Pleas by the Act of 14th February 1857. A liberal interpretation is given to the chancery powers thus conferred: Wesley Church v. Moore, 10 Barr 280; Yard v. Patton, 1 Harris 282. Gibson, C. J., remarked in the former case that the equity jurisdiction conferred by the statutes for this purpose, is a valuable, indeed indispensable one, and it ought to be extended by every interpretation of which the words are susceptible. That a mistake or accidental omission, its equivalent, m drawing up the terms of a written instrument, falls within the jurisdiction of chancery under the head of mistake, is clear, and appears by the text books and numerous decisions: 1 Story’s Equity, §§ 152, 153, 154, 155, 156; Marquis of Townshend v. Stangroom, 6 Ves. Jr., 328, a, and notes to Sumner ed; Hunt v. Rousmanier, 1 Peters 13; Graham v. Pancoast, 6 Casey 89; Nace v. Boyer Id. 99; Ferris v. Henderson, 2 Jones 49; Jenks v. Fritz, 7 W. & S. 201. On general principles the jurisdiction of the Court of Common Pleas over this bill is indisputable.

But it is said that the plaintiff had an adequate remedy at law, either by an action on the original agreement to recover the omitted interest, or by application to the Court of Common Pleas to open the judgment entered on the single bill for the purpose of reforming it. The adequacy of either is extremely doubtful. In an action at law, the plaintiff would have been met by the objection that the contract of sale merged in the deed, and the security taken for the unpaid purchase-money, and by the stiff and rigorous character of the evidence required in a common-law court. Ejectment would not lie to enforce payment after the delivery of the deed, and assumpsit (which-has been suggested also) would have no advantage over covenant on the article of agreement. None of these forms of action in a case such as this would be equivalent to the more direct and plastic remedy by bill in equity. The application to the court to open the judgment is even more objectionable. It is a purely discretionary proceeding, and no appeal lies upon an adverse decision. The application besides, presents no means of compelling discovery. And were the judgment to be opened it would be a question how far- the Court of Common Pleas could get behind the single bill on which the judgment was entered. The judgment follows truly the single •bill, while the error lies back of both in the omission to insert the interest. Would the court reform the single bill and enter judgment for a greater amount than the confession authorized ? All these difficulties attending the plaintiff’s proceedings at common law make the bill in equity the only safe and entire remedy. The allowance of the amendment to the bill was immaterial. It was only framed to admit of a decree to reform the judgment. But this is superfluous. The court proceeding in equity could not actually reform the judgment remaining on the law side of the court, but by its decree would order payment of the interest according to the terms of the original agreement, and could enforce that decree by all the various forms of process in execution, belonging to a court of equity.

Decree affirmed with costs.

Thompson, C. J., dissented.