of this debt, you would be warranted in finding a verdict in favor of the plaintiff for the amount of the policy." In this we find no error, and as that was about all there was to the case, it follows that the rule should be discharged.

And now, to-wit, June 21st, 1919, the rule granted December 6, 1918, to show cause why judgment should not be entered N. O. V. is discharged, and the prothonotary is directed to enter judgment on the verdict upon payment of the fee bill.

MERCHANTS BANK V. BROWN.

Judgment-Rule to open-Burden of proof-Contemporane

ous parol agreement.

In the application to open a judgment, the burden of proof is on the defendant to establish the facts necessary to relieve him from the payment of the judgment against him.

Parol evidence is admissable of a contemporaneous agreement which induced the execution of a written contract, though it may vary, change or reform the instrument; but such oral agreement must be shown by evidence that is clear, precise and indubitable.

Where a chancellor would not reform, or ought not to reform, a written instrument because of the doubtfulness of the parol evidence to set it aside, he should not allow twelve chancellors in a jury box to nullify it.

Rule to open judgment, No. 512 February Term, 1919. C. P. Erie County.

Gunnison, Fish, Gifford & Chapin and Otto A. Stolz for

plaintiff.

Shreve & Shreve for Defendant.

WHITTELSEY, J., June 21, 1919-This is an application to open a judgment entered upon a note under seal, with power of altorney attached, authorizing judgment to be entered thereon. From the evidence taken it appears that the defendant on the 29th day of December, 1916, subscribed for twenty shares of the capital stock of the Meadville Brewing Company, a corporation, of the par value of fifty ($50) dollars each; and in payment thereof he gave his note to the company for one thousand ($1,000) dollars. Subsequently thereto he paid two hundred fifty ($250) dollars on

Merchants Bank v. Brown

the note, and gave a new note for seven hundred fifty ($750) dollars, being the note now in suit. This note was discounted at the Merchants National Bank of Meadville, Pa., and the certificate of the twenty shares of stock issued the defendant, Lewis Brown, was deposited as collateral security with the note. At the time of the purchase of this stock he was made agent of the Brewing Company for distributing the beer in Northwestern Pennsylvania, and continued to act as such distributer until on or about May 5th, 1917, when the defendant became indebted to the company in the sum of two thousand seven hundred sixty-one and 90-100 ($2,761.90) dollars. Thereupon they discontinued selling beer to the defendant and entered into an arrangement with F. P. Fieger to sell the beer in the same territory.

The defendant contends in his affidavit of defence that "it was agreed upon and understood at that time by all the parties interested that the said F. P. Fieger was to take over the said agency upon the same terms and for the same consideration that had been agreed upon when the defendant became the agent of the company," and "that upon the cancellation of his agency and the formation of the new agency as stated, it became the duty of the said Meadville Brewing Company to return to the defendant the note which he had given, and for which in consideration of the said note, the defendant was to have the said agency, but the said Meadville Brewing Company has failed and neglected so to do."

It must be conceded that the burden of proof is on the defendant to establish the facts necessary to relieve him from the payment of the judgment against him. It is undoubtedly true that parol evidence is admissible to establish a contemporaneous oral agreement, which induced the execution of the written contract, though it may vary, change or reform the instrument; but this agreement must be shown by evidence that is clear, precise and indubitable; and this can only be done by the testimony of two witnesses, or one witness corroborated by circumstances equivalent to another. Thomas & Sons vs. Loose, Seaman & Co., 114 Pa., page 35.

The testimony to alter and overthrow a written agreement must be clear, precise and indubitable, and it must be of a higher and greater degree than is necessary to qualify or contradict or change a parol agreement. Keystone Axle Co. vs. Leyda et al., 188 Pa., 322.

Parol evidence is admissable of a contemporaneous agreement which induced the execution of a written contract, though it may vary, change or reform the instrument; but such oral agreement must be shown by evidence that is clear, precise and indubitable. Sutch's Estate, 201 Pa., page 305.

Where a chancellor would not reform, or ought not to reform

Merchants Bank v. Brown

a written instrument because of the doubtfulness of the parol evidence to set it aside, he should not allow twelve chancellors in a jury box to nullify it.

Ogden vs. Phila. & Westchester Traction Co., 202 Pa., 480.
Replogle vs. Singer, 19 Sup., page 442.

Butler vs. Keller, 19 Sup., page 472.

On the defendant's own showing, there is no evidence that he was to have the exclusive agency to sell the beer of the Meadville Brewing Co. for an indefinite period of time. It appears that he did have the agency from the time the arrangement was made until about May 5, 1917, when he was indebted to the company for beer furnished him in the sum of $2,761.90; at which time the agency was taken away from him on account of his indebtedness. But he still retained his stock in the company, which was hypothecated in the bank with the note in suit. There does not seem to be anything that amounts to the dignity of evidence that the Meadville Brewing Company ever agreed at any time to return the defendant the note in suit. The minute book containing a record of the corporation and directors' meetings, has been produced in evidence, and searched, and no record of any action of that sort can be found. Surely it cannot be successfully contended that an obligation owing to a corporation like the one in question, can be cancelled by the mere talk of an officer of the corporation, when it is specifically denied by that officer. After having examined all of the evidence in the case, we are clearly of the opinion that it is not sufficient to warrant the opening of the judgment.

ORDER

And now, to-wit, June 21st, 1919, the rule to show cause why the judgment in this case should not be opened and the defendant let into a defence is discharged.

IN RE CHARTER OF NO-TOBACCO CORPORATION.

Corporations-Charter Application-Membership—Purpose— Anti-Tobacco-Political Purpose.

Corporations of the first class do not "transact business" in the sense in which these words are commonly used; their "business" consists in carrying into effect a purpose, not in making money. Each has its place of meeting within the county where it is incorporated, and must at all times be under the supervision and control of the Court that gave it life. The authority of this Court does not extend to "All the States of the United States of America," hence it would be improper to approve a charter of the proposed corporation intending to establish places in which to transact its business in the county and State as well as in other States.

An appilcation for a charter for a first class corporation was refused where it omitted all references to age, sex, character and citizenship of new members. In view of the declared purpose of the incorporators, both as respects the selection of places in which business is to be tranacted and the objects to be accomplished, the Court should be advised as to terms and conditions of membership.

A charter will be refused where petitioners state the purpose of the proposed corporation is "to educate the public to a knowledge of the evils of the use of tobacco" and "to secure by law the prohibition of the culture, sale and use of tobacco."

The use of the word "educate" in stating the purpose of a proposed corporation does not bring it within the provisions of sub-division II of Section 2 of the Corporation Act of April 29, 1874, as a "benevolent, charitable, educational or missionary undertaking," when the petition for incorporation shows the purpose to be promulgation and propagation of theories respecting the effects and consequences of habits and customs, concerning which persons of equal intelligence differ and doctors disagree.

Application and Exceptions. No. 665 July Term, 1919. C. P. Allegheny County.

James H. Gray, for petitioners.
A. O. Fording, for protestants.

CARPENTER, J., June 19, 1919.-The Corporation Act of 1874 requires that the certificate of incorporation of a proposed corporation of the first class shall be acknowledged by at least three of the subscribers, before the Recorder of Deeds of the county in which the business of the corporation is to be transacted, and presented to a law judge of said county, who is required to peruse and examine said instrument and if it is found to be in

In Re Charter of No-Tobacco Corporation

proper form and within the purposes named in the first class and shall appear lawful and not injurious to the community, he shall endorse thereon these facts and shall order and decree thereon that the charter is approved and that upon the recording of the said charter and order the subscribers thereto and their associates shall be a corporation for the purposes and upon the terms therein stated.

It will be noted that the acknowledgement must be before the Recorder of Deeds of the county, and the charter must be perused and examined by a law judge of the county, in which the business of the corporation is to be transacted. The purpose of these requirements, so clearly expressed, is manifest and comment unnecessary. But notwithstanding the clarity of expression, the dominant thought in imposing the requirements quoted, seems to have been overlooked or ignored in stating the place, or rather the places, where the business of this proposed corporation is to be transacted. Corporations of the first class do not "transact business" in the sense in which these words are commonly used; their "business" consists in carrying into effect a purpose, not in making money. Each has its place of meeting within the county where it is incorporated, and must at all times be under the supervision and control of the Court that gave it life. The authority of this Court does not extend to "All the States of the United States of America," hence it would be improper to approve a charter of a proposed corporation intending to establish places in which to transact its business

"in the City of Pittsburgh, County of Allegheny and Commonwealth of Pennsylvania and in all the States of the

United States of America."

*

*

*

The right of a corporation to transact business outside the county or state and the right of the individuals who compose it, to propagate their views or seek adherents or converts elsewhere are essentially different.

A further objection to the granting of this charter is that it is silent respecting increase in membership. Having no provision respecting admission to membership, it omits all reference to age, sex, character and citizenship of new members. It is pertinent, therefore, to inquire who are to compose the corporation, other than those named in the application, and what are the requisites to membership. In view of the declared purpose of the incorporators, both as respects the selection of places in which business is to be transacted and the objects to be accomplished, the Court should be advised as to terms and conditions of membership. The judge may be, and in this instance is, entirely satisfied respecting the personnel of the proposed corporation, but the good character of the petitioners is not a guaranty that the control of the organization