Opinion,
Mr. Justice Sterrett:Considered in connection with other evidence in the cause, including the testimony of August Reibel, Henry Haldeman and Ann Haldeman, the question complained of in the first specification was rightly admitted.
There was no error in affirming the point recited in the second specification. The evidence tended to prove the facts of which it is predicated, and was therefore proper for the consideration of the jury. If they found the facts to be as stated in the point, — and the verdict shows they did, — the legal conclusion drawn therefrom is correct. It does not appear that the court was asked to withdraw the case from the jury, or instruct them that the evidence was insufficient to justify a verdict in favor of the plaintiff. By common consent, the case was re*65garded as involving questions of fact upon which it was the province of the jury to pass, and it was accordingly submitted to them in a clear and comprehensive charge, in which they were adequately instructed as to the degree of proof necessary to authorize a verdict in favor of the plaintiff. The learned president of the Common Pleas appears to have been satisfied with the verdict, and for reasons given at length in his opinion filed and returned with the record, the motion for a new trial was denied.
There appears to be no error in that part of the charge recited in the third and last specification. In connection with other portions of the charge, it contains a clear and correct statement of the law applicable to the facts which the evidence tended to prove. The court had previously instructed the jury that, in cases of fraud or mistake as to material facts, parol evidence of what occurred at the time of the execution of the writing is competent to explain the meaning of the parties, except as to negotiable paper in the hands of innocent holders; that when the evidence is clear and precise, as to the fraud or mistake, there is no limitation as to the power to modify, explain or reform written agreements, and that such evidence may be admitted to contradict, vary or even avoid a written instrument where it clearly shows that but for the oral stipulations it would not have been executed. Preceded, as it was, by these and other instructions, there is nothing erroneous or misleading in that part of the charge complained of.
Judgment affirmed.