
    Christ against Diffenbach and others.
    In Error.
    ERROR to the Common Pleas of Dauphin county.
    A lessee may give parol evidence that the lessor undertook at the time of the execution of a written lease, to perform a covenant agreed to be inserted in the lease, but omitted.
    It is settled law that parol evidence is admissible in casos of fraud, and of plain mistake in drawing a writing.
    
      Christ brought an action of replevin for goods distrained by the defendants, who avowed for one year’s rent in arrear. The plaintiff replied no rent in arrear, and issue was joined. On the trial the defendants gave in evidence a lease, dated the 17th January, 1804, executed by them of the one part, and by the plaintiff of the other part, of a mill and certain lands at the annual rent of 420 dollars. The lease contained a number of covenants to be performed by both parties. The plaintiff offered to give in evidence, that at the time of contracting and before the lease was reduced to writing or executed, it was agreed between the lessors and the lessee, that the lessors would, on or before the 1st day of September, then next ensuing, cause or procure, at their own proper costs arid charges, the tail race of the mill to be dug nine inches deeper, and three feet wider,' so as to void or carry off the water that would be required to turn two water wheels, then built and set up in the mill; and that this contract was to form one of the covenants in the lease, and to be included therein. ■ That the lessors and the plaintiff went to a public house within one-fourth of a mile of the mill, and Frederick Oyer, Esq. commenced writing the lease. Before it was completed, as the plaintiff had not seen the wheels in operation, he returned in company with the lessors to the mill, and procured them to be set to work; he then informed the lessors he could not give one-half or one-fourth of the rent they asked (420 dollars) unless the tail race was dug out as beforementioned: That Peter Dijfenbach, one of the lessors, in the presence of the others, and with their approbation and consent, replied, “ if )?ou will give the 420 dollars per annum, we will engage “ to complete the tail race to your satisfaction, and so as to “ void all the water that may be made use of in turning the “ said wheels, without stop or hindrance to them.” They then returned to the public house where the lease was written : but before the execution of it, finding the said covenant was not inserted, the plaintiff objected on that account; on which the lessors said it was of no consequence, they were men of honour, and what they promised should be punctually performed in the months of June, July, or August, then next ensuing; and it was all one to him, the lessee, or to them, the lessors: whether inserted or not, they would perform it. Trusting to the assurances thus given, the lease was executed. That the said covenant was not performed during the continuance of the lease, and that the plaintiff has sustained damage thereby, to more than the amount of rent now demanded. To this testimony the defendants objected, and it was -rejected by the court, who sealed a bill of exceptions.
    
      Fisher for the plaintiff in error.
    
      Godzbin contra.
   Tilghman C. J.

John Christ (the plaintiff in error) rented a mill and land of the defendants in error. The lease was in writing; and the question is, whether the parol evidence mentioned in the bill of exceptions, was receivable ? I am not for carrying parol evidence farther than is warranted by decisions which are binding on this court; but it is too late, now, to consider, whether more good or harm has resulted from the admission of such evidence, in any case of writing. Without citing cases, or undertaking to enumerate all the exceptions -to the general rule, it may be laid down as settled law, that parol evidence is admissible in cases of fraud, and of plain mistake in drawing a writing. The evidence offered in the present case went directly to establish a fraud. A certain rent had been agreed upon between the lessors and lessee, on an understanding that the lessors were to widen and deepen the tail race of the mill, at their own expense. While the writings were drawing, the parties went to view the mill. When they came back, and were about to execute them, the lessee perceived that the clause respecting the tail race was omitted. He objected to signing, but was induced to it, by the lessors’ promise that they would do what had been agreed upon, in the months of June, July, or August next ensuing. Trusting to this, he executed the lease, and now the lessors say, that they find nothing of the tail race in the writing, and to that only they look. 1'his is the case which the plaintiff offered to prove, and, if established, was he not tricked into the execution of the lease ? Or would such conduct be any thing' more or less than a downright fraud, on the part of the defendants ? Whether the plaintiff could have made good his assertion, is not now to be inquired of; but, undoubtedly, he should have been allowed an opportunity of doing it. I am, therefore, of opinion, that the judgment should be reversed, and a venire facias de novo awarded.

Ye ates J.

I have always understood the settled law in this government, since the decision in Hurst’s Lessee v. Kirkbride, cited in 1 Binn. 616. to be, that whatever passed at, and immediately before, the execution of any instrument, might be given in evidence to impeach the fairness of the transaction. It was bottomed on the decision of Harvey v. Harvey, 2 Cha. Ca. 180, that a Court of Equity would receive parol evidence of the declarations made, before a deed was executed, to show its real design and character. The present case is, in fact, much stronger than Hurst's Lessee v. Kirkbride. There, the conversations of the parties, which were permitted to be detailed, went to narrow down and restrain the general and comprehensive words in the deed, of all the grantor’s lands in Pennsylvania and elsewhere in America. The parol evidence was permitted even to contradict the conveyance, upon the ground of fraud. Here a fraud is also attempted ; for the lessee objected to execute the lease, until he received assurances from the lessors, that the tail race of the mill should be dug out in a certain manner to void the water, at their expense, and that it made no difference to him whether a covenant to that effect was inserted in the deed or not. But a contract of this nature might well stand with the expressions in the lease, and does not contradict it. I will only add, in the language of Lord Hardwicke, in Baker v. Paine, 1 Ves. 457, how can a mistake in an agreement be proved but by parol evidence ? It is not read to contradict the face of the agreement, which the court would not allow, but to prove a mistake therein, which cannot otherwise be proved.

. I think the parol evidence ought to have been allowed to go to the jury, and therefore the judgment should be reversed, and a venire facias de novo awarded.

Brackenridge J. concurred.

Judgment reversed, and a venire facias de novo awarded.  