
    Campbell, Appellant, v. Erb.
    
      Judgment — Satisfaction—Discretion of court — Certiorari.
    An appeal from an order of court refusing to strike off the satisfaction of a judgment, amounts to nothing more than a common writ of certiorari, and must be disposed of as such. The matter is within the discretion of the court below, and such discretion will not be reversed by the appellate court in the absence of manifest error.
    Argued Nov. 14, 1907.
    Appeal, No. 79, Oct. T., 1907, by plaintiff, from order of C. P. Lancaster Co., Jan T., 1895, No. 717, discharging rule to strike off satisfaction of judgment in case of George Campbell v. Aldus Erb.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to strike off satisfaction of judgment.
    
      Landis, P. J., filed the following opinion:
    On March 28, 1895, the defendant executed and delivered to the plaintiff a judgment bond for $1,000, which was, on the same day, entered in this court to the above number and term. At the same time, its lien was postponed to a judgment held by Thomas Cully against the defendant for $1,500. It was not revived after its entry. On November 5, 1904, the plaintiff signed a power of attorney, authorizing and empowering the prothonotary to enter satisfaction upon it, and, in pursuance of the power thus given, the judgment was, on November 7, 1904, marked satisfied. The plaintiff now asks that this satisfaction be stricken off and that the original judgment be restored. It was shown that George Campbell had knowledge of its purport, and signed the paper with a full understanding of its purpose and effect, the sole contention here being, that Aldus Erb did not pay the money, but undertook to give a note with security, and failed to carry out his promise.
    George Campbell, is an aged man, almost eighty-six years old. Rey. John B. Laird is a nephew of George Campbell, and a brother-in-law of Aldus Erb. He knew that Aldus Erb owed Campbell $1,000, and that Henry Douts owed him $600, and that the interest was hardly sufficient for the old gentleman’s maintenance. Campbell had informed him that he intended the principal of these indebtednesses to go to Erb’s wife and Henry Douts after his death. Laird therefore suggested to Campbell an annuity plan, whereby Erb should pay $75.00 yearly during Campbell’s life. Erb was not present when this proposition was made, and it was only communicated to him after Campbell had approved of it. In accordance with this idea, the judgment in controversy was satisfied, and a note was prepared by Laird, which was mislaid. Erb afterwards wrote one of similar import which he signed and handed to Campbell. Erb understood that security was to be given, and informed Campbell that he had been to his father’s house to get the signature of his father to the note, but that his father was not at home. Campbell accepted the note, and said he would get the father to sign. He kept the note, did not procure the father’s signature, and received from time to time payments in money, wheat, corn, etc., to the amount of $164.39. He never demanded the security before these proceedings were instituted. Benjamin W. Erb, who- is the father of Aldus Erb, testified that he told Campbell he would sign the note, and Campbell answered, “1 will come down some day and we will have á talk and you can put your name on.” Under the facts as thus presented, should the satisfaction be stricken off?
    Parol evidence is not ordinarily admissible to contradict or vary a written instrument, unless it is shown that there has been fraud, accident or mistake in the creation of the instrument itself. But evidence of a-contemporaneous oral agreement, which induces the execution of the written contract, is admissible; though it may vary, change or reform the instrument, such oral agreement being, however, shown by evidence that is clear, precise and indubitable: Sutch’s Estate (No. 1), 201 Pa. 305; Thomas v. Loose, 114 Pa. 35; Phillips v.' Meily, 106 Pa. 536; Nettleton v. Caryl, 20 Pa. Superior Ct. 250. That an agreement was made in this case whereby $75.00 was to be paid per year during the life of George Campbell, and that, in pursuance of this agreement, the judgment was satisfied, seems to be plain; and from the testimony of the parties themselves, we must also conclude that the note, which was to be given was to have upon it the name of Aldus Erb’s father as security. It is true that this part of the agreement has not been fulfilled, and, if this were all that appeared, and it Was made plain to us (which it has not) that the rights of third persons are not in any way involved, we might be' impelled to reinstate the parties in the position which they occupied before that arrangement was made. But we are satisfied, from the preponderance of the evidence before us, that the fault, if any there was, that caused the lacking signature upon the note, was more attributable to George Campbell himself than to Aldus Erb, and we think that, under the circumstances, he has no standing to ask for this equitable relief. He accepted a note without security, and has retained it almost three years without complaint. In addition, he has never attempted to secure the signature of Benjamin H. Erb, which he undertook to obtain, although Erb was willing to go on the note. He has, therefore, no right to have satisfaction stricken off. In Seigler v. Ripple, 1!6 Lañe. Law Review, 237, under facts having some similarity, an'aged woman attempted to strike off the satisfaction which she had entered on a mortgage held by her against her' grandson. Thé late Judge Livingston, having fully considered all the merits, for reasons of like character discharged the rule. ■ This, we think, is the proper course to be pursued in the present casé, and the rule is now discharged.-
    February 28, 1908:
    Rule discharged.
    
      Error assigned was the order of the court.
    
      B. F. Davis, for appellant.
    
      J'ohn-M. Groff, for appellee.
   Opinion by

Orlady, J.,

On March 28, 1895, the defendant executed and delivered to.the plaintiff a judgment bond for $1,000, which was on the same day entered in judgment in the court of common pleas, with- its lien postponed to another judgment against the same defendant for $1,500. No scire facias to revive this lien was ever issued thereon, and on November 5/ 1904 the' plaintiff signed-a power of- attorney authorizing the prothonotary to enter satisfaction upon it; in pursuance of which the judgment was marked satisfied on November 7, 1904. On December 15, 1906, the plaintiff presented his petition for a rule to show cause why the entry of satisfaction should not be stricken off and vacated. To this rule an answer was made by the defendant, and after a full hearing on the petition, answer and depositions the rule was discharged. The appellant urges a number of propositions that cannot be considered in the light of the real question involved. This is an appeal from the order of court refusing to strike off the satisfaction of a judgment.- In legal effect, therefore, it amounts to nothing more than a common writ of certiorari. ’ Rand v. King, 134 Pa. 641. It is, therefore, to be disposed of as such: Shoup v. Shoup, 205 Pa. 22; Gilmore and Gilmore & Duffy v. Dunleavy, 6 Pa. Superior Ct. 603; McKinney v. Fritz, 2 W. N. C. 173. If the plaintiff was induced to enter satisfaction of the judgment upon the record either- by fraud or by mistake the court undoubtedly had the right, upon proof of the facts, and on notice to the parties, to strike off such improper entry. This question was addressed to the discretion of the court, and we are in full accord with the conclusion reached.

The assignment of error is overruled, and the judgment is affirmed.  