[Chambersburg,
October, 17, 1823.]
MILLER against HENDERSON.
IN ERROR.
Parol evidence is admissible under the plea of payment to a suit on a bond against a surety, to show, that he executed the bond under a declaration by the obligee, that his signing was mere matter of form, and that he never should be called on for payment.
This was a writ of error to the Court of Common Pleas of Huntingdon county in which a verdict and judgment were rendered in favour of the defendants
It was an action on three single bills for 1000 dollars each, brought by Jacob Miller, the plaintiff below, against John Jt. Henderson, the defendant below. These bills were executed by Edward 1L Patton, as principal, and John Jt. Henderson, the defendant as his security. The cause went to trial on the issue of payment,' with leave to give the special matters in evidence. The plaintiff excepted to the opinion of the court on the admission of parol evi-' dence to the following effect. Edward B. Patton, being indebted to the plaintiff in about 3000 dollars, went to the bank of Huntingdon, where the plaintiff was, in order to sign a note or bill for the debt. On going to the bank he found, that three single bills had been drawn, each for the sum of 1000 dollars, and with two seals. On perceiving the two seals he observed to the plaintiff, that he supposed he should have to get some person for his security, and went to the door of the bank just as the defendant, Henderson, was passing by. Patton called to the defendant, and then turned to the plaintiff, and said, he supposed Mr. Henderson would do, who answered, very well. As the defendant came to the door he asked Patton what he wanted with him, who answered that he wanted him to sign a note or notes he was going to give Mr. Miller. The defendant made no answer, appeared to hesitate, and after a short pause, asked Patton, what it was for. Patton said it was for the store he had purchased of Mr. Miller, and the amount *291was about 3000 dollars. The plaintiff corrected him, and said the amount was more than 3000 dollars. Patton then turned to the defendant, and said, “you would not be afraid to put your name to my notes.” The defendant hesitated, and made no answer. Patton then gave as a reason why he asked him to sign the notes, that they had been drawn with two seals; that it was mere matter of form, and the defendant would never be called on for the money. The defendant then said, if it was understood he was not to pay, he had no objection to putting his name to the notes. During all this conversation, the plaintiff was standing near, on the opposite side of the counter, and in full hearing. When Henderson told the defendant it was matter of form, the plaintiff bowed his head, and said, it was mere matter of form. The plaintiff then passed the notes, and the inkstand over the counter to Patton,who signed them. The defendant then took up the pen and said, “ it is understood that this is mere matter of form, and that I am not to be called on to pay.” Miller answered, “ it is mere matter of form, it is not even supposed you will be called on.” The defendant turned to Patton, and made the same observation to him, who made an answer similar to the plaintiff’s, but in coarse terms and accompanied with an oath. The defendant then signed the papers and the plaintiff passed them down the counter to William J. Williams, who signed his name as a witness, and who gave the parol evidence above stated.
Burd and Chambers, for the plaintiff in error,
now insisted, that the evidence went to contradict a written instrument: and though the rule as to the rejection of parol evidence to vary writings had been relaxed in Pennsylvania, yet it had never been carried so far as in the present case, where it goes to the total destruction of the writing. They cited Thompson v. White, 1 Dall, 426. 0‘Hara v. Hall, 4 Dall. 340. M‘Dermot v. United States Insurance Company, 3 Serg. & Rawle, 607, Campbell v. Wallace, 3 Yeates, 572. Snyder v. Snyder, 6 Binn. 483. Wright’s Lessee v. Deklyne, 1 Peters, 204. Lea v. Biddis, 1 Yeates, 8. Gilpin v. Consequa, 1 Peters, 85. Wallace v. Baker, 1 Binn. 710. Bennezet v. M‘Clenachan, 2 Dall. 173. Little v. Henderson, 2 Yeates, 295. 1 Phill. Evid. 442. 1 Pow. Cont. 431. 2 Bay, 307. 8 Johns. 189. Church v. Church, 4 Yeates, 281. 1 P. Wms. 482. 2 Johns Ch. 412, 557. Sugd. Vend. 117, Skinner, 157. Clark v. Russel, 3 Dall. 424. 3 Johns. Cas. 4.
Tod, contra,
contended, that the point had often been decided, and in cases stronger than the present. It was a palpable fraud in Miller to prevail on Henderson to execute the bond under an assurance that he should not be called on for payment, and then tq sue him: and in all cases of fraud parol evidence is admissible. Field v. Biddle, 2 Dall. 171. Hurst v. Kirkbride, 1 Yeates, 140. Drum v. Simpson, 6 Binn. 478. Reichart v. Castator, 5 Binn. *292109. Hill v. Ely, 5 Serg. & Rawle; 363. Dinkle v. Marshall, 3 Binn. 511. Thompson v. Foussatt, 1 Peters, 182.
The opinion of the court was delivered by
Tilghman, C. J.
(After stating the case.) It has been so often decided, that it is now settled law, that parol evidence may be give to show, from what passed at the time of the execution of a writing, that it was executed by one party, in consequence of the fraudulent conduct or false representations of the other. It is ob* jected that no adjudged ease goes so far as the present; because, here, the evidence is in total destruction of the defendant’s obligation. But the principle is the same, whether the obligation be de^ stroyed in whole, or in part. In either case, it is broken in upon, The destruction of a written instrument, by parol evidence, may seem dangerous, and in fact it is so. But the community would be in a still worse condition, if it were established as an inflexible rule, that when a man’s hand was once got to an instrument, no matter by what means, the door should be shut against all inquiry. The encouragement to fraudulent villainy would be so great, under such a system, that the consequences might be intolerable. The defendant does not deny, that he executed these notes, or allege that he was ignorant of their contents; but declares, that he would not have executed them, but for the assurance of the plaintiff, that the having two names was no more than matter of form, and that he should not be looked to as payer. To be sure, it is a strange story, and one that the jury should have heard with great caution. A great deal would depend on their opinion of the defendant as a man of intelligence, and of the plaintiff as a man of integrity. But the question is not, what weight ought to have been given to the evidence, but whether the jury should have been permitted to hear it. And I confess I do not see how it could have been keptfrom them without undoing what has been done in the courts of Pennsylvania for the last fifty years, and without saying, that when a man has put his hand to a paper, he shall not be permitted to allege that he was induced to do it by fraud or artifice. I am therefore of opb nion that the evidence was properly admitted, and the judgment should be affirmed.
Duncan, J. gave no opinion, not having heard the argument.
.Judgment affirmed,