
    Yeisley v. Bundel.
    On a sci. fa. sur mechanic’s lien, the claimant proved the value of his work, in the erection of two houses, to be §1084, admitted payment on account to the amount of §806, and claimed the balance. The defendant produced a written contract whereby the claimant agreed to do the work for §525, “ and, should more than the ordinary superintendence usually given by the carpenter be required, the contractor to receive an additional allowance of §25, cash, to be paid as the work progresses.” The defendant testified that he had paid more than the contract price, on account of delay and in order to get his house completed without employing another carpenter. The claimant, in rebuttal, testified that the sum mentioned in the contract was not intended to be binding, but was fixed at the defendant’s request so that he could show the contract to his wife and satisfy her for not giving the work to her brother-in-law. The contract was signed Feb. 19, 1883. The plaintiff testified, and the defendant admitted, that, by Aug. 18, seven payments had been made aggregating §575, and that fifteen further payments were made, from time to time, until March 1,1884, two days before the work was finished, and that the defendant was present as the work progressed. The defendant contradicted the plaintiff’s testimony as to the contract, and no other witness was offered in corroboration. Held, that the parol evidence was insufficient to vary the written contract, and that there weré no corroborating circumstances equivalent to a second witness.
    A question, asked of the plaintiff, whether or not the defendant, in the progress of the work, ever said anything to the plaintiff with reference to the alleged contract, was properly excluded.
    May 16, 1888.
    Error, No. 180, Jan. T. 1888, to C. P. Lancaster Oo., to review a judgment on a verdict for the plaintiff in sci. fa. sur mechanic’s lien, at May T. 1886, No. 7. Trunkey, J., absent.
    The lien filed was for an alleged balance for carpenter work done upon defendant’s houses within six months. Pleas, nil debit, payment with leave, and set-off.
    
      On the trial, before Patterson, J., plaintiff gave evidence to prove that the value of the work, begun Jan. 8, 1883, and finished March 3, 1884, was $1,084; that defendant was present during the progress of the work, and had paid $806 on account of the same, leaving a balance due of $218, for which the lien was filed. The plaintiff testified, and the defendant admitted that the first payment was made March 1, 1883; that, on Aug. 18, seven payments had been made, aggregating $515; and that fifteen further payments were made, from time to time, the last being on March 1, 1884 — $18. Plaintiff testified that when he made this last payment, defendant said “ that was all he had at the time,” and then handed over a check for that amount.
    On cross-examination, the plaintiff admitted that he had signed a contract, of which the following is a copy:
    “I, George Yeisley, of Lancaster, Pennsylvania, hereby agree to do the carpenter work for two houses on lot No. 414 North Queen Street, Lancaster, Pa., for Henry Bundel, for $525.00. Those houses to be as per plans marked number 1 and 2. And to be finished as per detailed drawings; no inside or outside shutters or blinds to front window frames ; Llenry Bundel to pay for all dressing and sawing and working of moulding with the exception of mouldings for front door frames. Should anything be taken from or added to the jfians marked Number 1 and Number 2, a proportionate advance or reduction to be made; should more than the ordinary superintendence usually given by the carpenter be required, then the contractor to receive an additional allowance of $25.00 cash, to be paid as the work progresses.
    [Signed] “Henry Bundel,
    “George Yeisley.
    “ Lancaster, Pa., February 19th, 1883.”
    The defendant offered the above contract in evidence; and, in answer to a question as to why he paid plaintiff $806, said : “ Simply because I found that I could not do anything else; I saw that the work was going on slow; I found that he was progressing with it so slowly, I was compelled to help him finish it, pay him, or let somebody else finish it, and- I thought it would be cheaper to let him do it.” He also contradicted plaintiff’s testimony throughout.
    On cross-examination, the defendant was asked the following questions:
    Q. Was Mr. Boring, a builder and contractor, also here in Lancaster at that time ?
    Q. Was Mr. Boring married to your wife’s sister?
    Each question objected to, disallowed and exceptions. [3, 4]
    Plaintiff, in rebuttal, testified as follows : “ He spoke to me the day before about the agreement, and the next morning he fetched it up. I had no time to make a calculation, so as to see what the work would be worth, and he came up and fetched the paper that he holds, and showed it to me, and I read it; I took it and threw it on the draught board in front of me, and I told him I wouldn’t do the work for that amount, for the reason that I couldn’t do it, and no person else could do it. When I refused to sign it, he says tome: ‘We will just put down the amount, so I can show them at home that you are to do all the work; then they will not bother me about Boring doing it any more.’ He says further: ‘ If you were not here, Boring should not do any of it.’ Now, 1 put that down, word for word, and I can swear positively that was the very words he spoke to me.”
    Plaintiff was then aslmd the following question:
    Q. State whether or not Mr. Bundel, in the progress of the construction of the building, ever said anything to you with reference to this alleged contract? Objected to, disallowed and exception. [5-]
    The plaintiff, on re-direct examination, and one of plaintiff’s witnesses, were asked the following: Q. What proportion of the work was done in your shop, in lieu of the ordinary mill work? Objected to, disallowed and exception. [8, 9.]
    The defendant presented, inter alia, the following points:
    “ 3. The mere fact of an over-payment in itself is not a corroboration sufficient to set aside a written contract.” Ans. “We say this is not sufficient; we give the other side the benefit of that law; if there was nothing said, but merely a payment over — and you have heard the reason for that, that the work was very slowly progressing and was nearly done, and he paid him simply because he didn’t want to employ any other hands to do it.” [2.]
    “ 4. In this case there has been no sufficient corroboration of plaintiff’s testimony to impeach the written articles of agreement, and the verdict of the jury must be for the defendant.” Ans. “We answer that in the affirmative. In the judgment of the court, there has been no sufficient testimony to impeach the written contract, and, therefore, that should be your verdict.” [1.]
    The court charged,'inter alia, as follows: “It is ruled that one witness and other competent evidence, equivalent to another witness, may go to the jury and may change the contract. Do you remember any testimony other than that of Mr. Yeisley, the plaintiff, himself, any testimony of any other witness saying a word about this written contract, or the terms ? The court cannot recollect any. Can you, gentlemen ? If not, then the written contract is the agreement between these parties, and must bind them both. And we say further, when a written instrument is sought to be changed in its terms or conditions, it must be shown that the terms and conditions insisted on must be shown to have been spoken of at the time, or about the time of the execution of the agreement, the time it was signed. And when this agreement was signed, both parties testified there was no person present but themselves.” [6.]
    Yerdict for the defendant and judgment thereon.
    
      The assignments of error specified, 1, 2, the answers to the points, quoting them; 3-5, the refusal of the questions above, quoting them; 6, the portion of the charge given, quoting it; 1, the refusal of the court to allow the case to go to the jury on the evidence; 8 and 9, the refusal of the questions above, quoting them.
    
      Benjamin F. Davis, for plaintiff in error.
    Not only was there mistake and fraud in the creation of the instrument of writing itself, but “there has been an attempt to make a fraudulent use of the instrument, in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed.” Phillips v. Meily, 106 Pa. 536, and cases therein cited.
    The corroboi’ating circumstances are sufficient. Pilling v. Armitage, 12 Ves. Jr., 79; Morphett v. Jones, 1 Swanst. Ch. 172.
    Defendant’s acquiescence estops him from claiming under the written contract. French v. Whitticar, 3 Phila. 51; Berg v. McClafferty, 1 Cent. P. 851; Cran’s Ap., 8 Cent. P. 173.
    The questions propounded, as set forth in the third, fourth and fifth assignments, should have been admitted to establish the relations between the parties and their conduct, and that Bundel never spoke of the contract, showing the reason and probability of there being such a verbal contract as testified to by plaintiff.
    That a new contract was substituted for the written one, may be proved by the acts and conduct of the parties. Grove v. Donaldson, 15 Pa. pages 136 7; Colt v. Selden, 5 Watts, 525.
    All dressing and sawing and working of moulding was done by Yeisley at his shop. He should have been allowed to prove it, because it did not contradict the written contract, but was part of the terms of it. Centenary M. E. Church v. Clime, 116 Pa. 146; Barnhart v. Riddle, 29 Pa. 92; Gould v. Lee, 55 Pa. 99.
    Where one, by an instrument under seal, agreed to erect a building for a fixed price which was not an adequate compensation, and, having performed part of the work, refused to proceed, and the obligee thereupon promised that if he would proceed he should be paid for his labor and materials and should not suffer, and he did so, it was held that he might recover in assumpsit upon this verbal agreement. 1 Greenleaf on Evidence, § 303 ; Munro v. Perkins, 9 Pick. 298; Rand v. Mather, 11 Cush. 1; White v. Parkin, 12 East, 578; Le Fevre v. Le Fevre, 4 S. & R. 241.
    
      T. B. Holahan, P. D. Blake, and J. W. F. Swift, for defendant in error.
    A written instrument can only be varied by two or more witnesses, or by one witness and corroborating circumstances equivalent to a second witness. Ort v. Oyer, 106 Pa. 6; Juniata Building Association v. Hetzel, 102 Pa. 508; North v. Williams, 21 W. N. C. 369; Phillips v. Meily, 106 Pa. 536; Kostenbader v. Peters, 80 Pa. 438; Penn Iron Company v. Diller, 1 Cent. P. 377.
    Now that parties are competent witnesses, the reason is stronger than ever for enforcing the rule. Sylvius v. Kosek, 117 Pa. 167.
    October 1, 1888.
   Green, J.,

We think the learned court below was clearly right in holding the parol evidence insufficient to change the written agreement between the parties. The contract, of course, spoke for itself, and it was admitted by tbe plaintiff, and fully proved, that the defendant had paid the full amount required by the contract and a considerable sum in addition. The plaintiff undertook to show that there was a parol agreement different from the written one, but he gave no testimony on this subject except his own, and that was positively and emphatically contradicted by the defendant. We have so often held that a written contract cannot be changed when the testimony is in this condition that it is entirely unnecessary to cite the authorities.

Nor do we find any circumstances in the case corroborating the plaintiff’s evidence in this regard. The fact that the defendant paid more than the contract called for proves nothing. He might well do so in order to get his house completed. That is the explanation he gives of it, and it quite meets and accounts for the fact itself. The plaintiff does not testify that these payments in excess were made in pursuance of any demand by him that he was entitled to them under any parol contract. The defendant says he could not get his house finished without paying these additional sums, and that he might as well pay them to the plaintiff as to any other carpenter. The fact that the defendant saw and knew that the work was going on, and made no objection, proves nothing whatever in corroboration of the theory that there was a parol contract different from the written one. He had a right, under the written contract, to a full performance, and therefore a full performance by the plaintiff proved nothing more than that, he was complying with the written contract. Of course, the testimony of the plaintiff as to the reason given by defendant for limiting the amount to $525, so he could show the paper to his wife, and satisfy her for not giving the contract to her brother-in-law, is all denied by the defendant, and goes for nothing.

There is nothing else offered in the testimony or in the argument to defeat the written agreement, and, of course, that contract must stand.

These views cover the first, second, sixth and seventh assignments. There is no merit in the others. Whether Mr. Boring was married to the defendant’s wife’s sister, and whether he was in Lancaster at a certain time, were matters totally irrelevant. The question overruled in the fifth assignment was entirely too general, and did not relate to the time the contract was executed or before. As to the eighth and ninth assignments, it was of no consequence where the plaintiff’s work was done. He was paid all that the contract required, and a considerable amount besides. As we have held, he was bound by the contract; he could recover nothing more, no matter where the work was done.

Judgment affirmed. W. M. S., Jr.  