The opinion of the court was delivered, May 18th 1874, by
Gordon, J.It is certainly permissible to give evidence of a verbal promise made by one of the parties, at the time of the making of a written contract, where such promise was used as an inducement to obtain the execution thereof: Campbell v. McClenachen, 7 S. & R. 171. This rule is put upon the ground that the attempt afterwards to take advantage of the omission from the contract, of such promise, is a fraud upon the party who was induced to execute it upon such promise, and hence he will be permitted to show the truth of the matter: Clark v. Partridge, 2 Barr 13; Renshaw v. Gans, 7 Barr 117; Dutton v. Tilden, 1 Harris 49.
Now, in the case in hand, McShain testified that the absolute condition upon which he signed the agreement was, that the company should furnish the coal by the 1st of October. He says, after speaking of their previous parol arrangement, “ Mr. Berwind showed me the paper. I was in a great hurry. I picked it up. I glanced over it and said, ‘ Mr. Berwind, this is one-sided; it don’t mention that you will furnish the coal by the 1st of October.’ ■ He' said, ‘ That is understood; we will not only furnish that, but expect to furnish five or ten thousand more by that time.’ I made answer, ‘If that is understood, I will sign it.’” This piece of evidence showed a distinct and material condition by which McShain was induced to sign the contract. To say then, that this contract might be enforced without regard to the express parol stipulation, under which it was signed, would be to disregard long and well-established legal principles, as well as the plainest demands of common honesty. The exceptions, therefore, to the charge and admission of evidence are not sustained. The case was properly submitted, and though in fact, the weight of the evidence may have been with the defendant, the resulting error lay with the jury, not with the court, and hence, comes not within our power of correction.
These observations dispose of the main points in controversy. We may observe, however, with reference to the point made, that indebitatus assumpsit will not lie upon a special contract, except where there has been a full performance on the part of the plaintiff, it is conceded that this proposition is correct. But the plaintiff did not rely upon the special contract; that was set up by the defend*246ant for the purpose of defeating the plaintiff’s claim, and as the jury found that it was not operative by reason of the defendant’s fraud, we cannot see why the plaintiff’s recovery under the indebitatus counts may not be sustained. So we cannot see that there was anything in the question raised by the defendant, as to the relation McShain’s employees sustained to him. It was not alleged that the company had contracted with any one but the plaintiff', or that there had been a joint undertaking by him and some one else to transport the merchandise in question. That he had employed his own firm to assist him in the performance of his undertaking,could, therefore, by no possibility, affect his right to recover.
Judgment affirmed.