Pioso v. Bitzer , 209 Pa. 503 ( 1904 )

Opinion by

Mb. Justice Fell,

This was a feigned issue to determine the ownership of a policy of insurance on the life of Moses Pioso, the plaintiff’s husband, and the right to a fund that had been paid into court by the New York Life Insurance Company after his death. The plaintiff was the beneficiary named in the policy if she survived her husband, and the case turned on the validity of an assignment made by her nearly four years before her husband’s death to one of his creditors. Both husband and wife joined in the assignment, which was “ made as collateral security for the payment of indebtedness to the said Uriah Bitzer, now and hereafter to accrue to him, by reason of his indorsement of the notes of M. Pioso & Sons.” Mr. Bitzer paid three annual premiums that became due after the assignment to him, and he assigned the' policy to his wife, the defendant in the issue, in part payment of a debt largely in excess of the amount of the policy, for money he had borrowed from her to pay the notes lie had indorsed for Pioso & Sons. The specifications of error relate to the refusal of the court to admit certain testimony offered by the plaintiff, and the direction to the jury to find a verdict for the defendant.

The execution and acknowledgment of the writing by the plaintiff were not disputed. The notary who took the acknowledgment testified that Moses .Pioso, the insured, called at his office and acknowledged the assignment, and that they went together to his home; that he there explained to the plaintiff the character of the assignment and told her that she was transferring all her right, title and interest in the policy to Mr. Bitzer; that her manner and her responses indicated that she fully understood what was being done, and that she had expected him to come. The plaintiff attempted to nullify and set the assignment aside onvthe ground of fraud in its procurement. Her daughter, called in her behalf, testified that the notary who took the acknowledgment called at the house alone, asked for her mother, and stated that he had brought papers sent by the insurance company, and that his purpose in calling was to know whether she wanted interest on the money ; that she acted as interpreter, because her mother could not speak English and understood it very imperfectly ; that she translated to her mother all the notary said and told him what her mother said in reply, which was to the effect that she had no need of the money and preferred letting the interest remain with the principal. She was allowed to testify fully as to what took place between her and the notary, what he said to her, and what she said to him in reply in translating for her mother. She was not, however, permitted to state what she had said in German to her mother and what her mother had said in German to her. Nor was the plaintiff allowed to testify to statements she had made in German to her daughter in the presence of the notary who did not understand the language spoken.

This testimony was offered to meet the requirements of the rule that two witnesses or one witness and corroborating circumstances are necessary to warrant the setting aside of a written instrument. The plaintiff’s daughter was acting for her and it was not competent to show what she said to her mother in a language not understood by the notary. The plaintiff did not understand what the' notary said, and she was no more competent to testify to it than if she had not been present. But had this testimony been admissible a second witness could not have been made or corroboration shown in this way. If it be assumed that the notary was the agent of Mr. Bitzer, and of this there is no evidence whatever, the important inquiry relates to what he said at the time. As to this there was only one witness, the plaintiff’s daughter, in contradiction of the notary’s clear statement and of the plain words of the writing. These offers would not, if established, have made out the plaintiff’s case.

The other offers of testimony overruled were to prove that eight months after the assignment of the policy the notary at the instance of the defendant called on the plaintiff for the purpose of obtaining a ratification or re-execution of the assignment ; that when in reading the assignment he came to the name Bitzer she became excited and angry and said: “You deceived me before; if you had read the name Bitzer to me, 1 would have known something was wrong, and I would not have signed the paper; ” that she left the room while the notary was reading, and that he said he was very sorrj- and never would forgive himself for what he had done. These offers were rejected on the ground that the testimony was insufficient to establish fraud in procuring the original transfer. They would have contradicted the testimony of the notary only as to his statement that he had mentioned the name of Mr. Bitzer when explaining the nature of the assignment. But if they had bem contradictory of all that he said and would have overthrown his testimony completely, they would have been unavailing, b - cause the case would have stood with the writing on one sid • and the testimony of a single witness on the other.

Nor would the testimony have had appreciable weight as tending to show an admission by the notary which corroborate 1 the plaintiff’s witness. Unless it was of value as corroboration, it was of no value at all. The circumstances connected wit'the visit of the notary were set out in the offers and ma le part of them. The visit was made after a dispute had aris" concerning the policy. There was nothing clandestine or underhand about it. One of the plaintiff’s sons, at the request of the notary, went with him, and explained the object of the visit. Her husband, her son, three of her daughters, and her son-in-law were in the room. On this visit as in all of his connection with the case the notary appears to have acted with entire fairness, and his expression of regret that he had done anything in the matter was entirely consistent with his honesty of intent and purpose. It is inconceivable that if he had deceived her, he would have gone in the most public manner and in the presence of all of her family and after a dispute had arisen asked her to reaffirm the acknowledgment. The substance of her accusation was not that he had made any misstatement but that he had not read the assignment and that she did not know that Mr. Bitzer was to get the policy, and to this his expression of regret related. This testimony would have been insufficient to raise a suspicion of fraud, much less to sustain it.

The rules of evidence which the court correctly applied in the case have been so repeatedly stated that it is unnecessary to do more than briefly refer to them. Where parties without fraud or mistake have put their engagements in writing, the law declares the writing not only the best but the only evidence of their agreement. While parol evidence is admissible to prove fraud and mistake, it is insufficient for thatpurpose unless clear, precise and indubitable. Testimony in contradiction of a written agreement amounts to nothing unless it is sufficient to warrant a chancellor in reforming it. In Phillips v. Meily, 106 Pa. 536, it was said : “It is only where a chancellor would reform the instrument that parol evidence is admissible to contradict it. It is true, under our practice in Pennsylvania, it is accomplished under common-law forms. But the fact remains that the defense set up is purely equitable, and the judge ought not to submit the case to the jury unless the evidence is such that he would feel himself bound as a chancellor to reform the instrument. With our modification of the English rule, nowtoo firmly imbedded in our system to be disturbed, and our act of assembly which makes every defendant a competent witness, the principle above stated is about all that is left to preserve the sanctity and force of an instrument of writing whether that instrument be a deed, which is the evidence of a man’s title to his home, or an obligation for the payment of money.”

The judgment is affirmed.