Sylvius v. Kosek , 117 Pa. 67 ( 1887 )

Opinion,

Mr. Justice Sterrett :

In response to the prima facie case presented by plaintiff’s evidence, including the written contract on which the action is grounded, defendant undertook to prove that an important provision of their verbal agreement in relation to building the houses was fraudulently omitted from the written contract prepared in duplicate by plaintiff and submitted to him for his signature. He testified in substance that plaintiff having verbally agreed to build the houses for a fixed sum, including wainscoting in lieu of plastering, undertook to prepare and send him for execution duplicate copies of their agreement, embodying that and all other provisions thereof; that, instead of doing so, he wrote and sent by the hand of Roushey duplicates from which the provision in question was omitted; that inasmuch as he was not sufficiently familiar with English to read the contract, he asked Roushey to read it, and he read it as though it contained the provision in regard to wainscoting, and thereupon he executed the contract in duplicate, believing it embodied all the provisions of their verbal agreement. '

In view of the foregoing testimony and the uncontradicted evidence as to Roushey’s authority in the premises, plaintiff in his third point requested the court to charge as follows: “ In order to bind the plaintiff by the alleged representations made by Roushey at the time of the execution of the written contract, it must be shown affirmatively that Roushey had authority from plaintiff to make such representations, and that the burden of proof is on defendant who seeks to take advantage of those representations. The simple testimony that Roushey was authorized to take the contract to Kosek, to be signed, is not sufficient evidence to establish that authority. There being no other evidence in this case tending to establish or prove such authority, the jury must find as matter of fact that none existed and plaintiff is not bound by representations alleged to have been made by Roushey.” The court declined to affirm this point as a whole, saying: “We cannot say, gentlemen, in the language of the point, that there is no other evidence in the case than that alluded to. In its length and breadth we cannot affirm this point; it is, therefore, disaffirmed.”

In plaintiff’s fourth point the court was further requested to charge: “ It being the uncontradicted evidence that Roushey’s authority was to deliver the contract to Kosek, and that if read at all, such reading was at the request and by direction of Kosek, this constitutes and makes Roushey the agent of 1 Kosek, and nothing that may have been said or done by Roushey, so acting, can in any way bind the plaintiff.” This point was also refused.

Each of these points was fully warranted by the evidence before us; and, as correct legal propositions, based upon the undisputed facts of the case, they should have been severally affirmed. Roushey was entrusted with the papers, merely for the purpose of delivering them to defendant. The evidence proves this and nothing more. If he read them to Kosek at his request, he did so as the agent of the latter and not of the plaintiff. If Kosek chose to make him his own agent for that purpose and the contract was incorrectly read, it was neither the fault nor the act of the plaintiff. The ninth and tenth assignments of error are sustained.

It is conceded by the learned counsel for defendant that the defence is in the nature of a bill brought to reform the written contract on the ground of fraud. The rules of evidence applicable to -such cases are too well established to admit of any doubt. The evidence requisite to reform a written instrument on the ground of fraud, accident dr mistake must be clear, precise and indubitable: Murray v. The New York, Lackawanna & Western Railroad Co., 103 Pa. 37. If the evidence when admitted is not such as would move a chancellor to reform the contract or deed, the case should not be submitted to the jury without binding instructions as to its insufficiency: Phillips v. Meily, 106 Pa. 536. Again, the answer of a plaint- . iff to such a defence as is set up in this case is conclusive, unless contradicted by two witnesses or one witness and corroborating circumstances equivalent to a second witness; and, now that parties are competent witnesses and each may oppose his oath to that of the other, when written contracts or obligations are sought to be impeached by defences purely equitable, the reason is stronger than ever for enforcing the rules of equity applicable to such cases: Phillips v. Meily, supra; Juniata Building Association v. Hetzel, 103 Pa. 507. Tested by these and other rules of evidence applicable to such defences as the one under consideration, we think the evidence was insufficient to justify the submission of the alleged fraud to the jury.

It is unnecessary to notice specially the remaining specifics tions of error. What has been said disposes of the controlling questions in the case.

Judgment reversed and a venire facias de novo awarded.