¶1Opinion by
¶2The appellant and appellee entered into an agreement of lease for a piece of ground adjoining the Pennsylvania Railroad, for a term of five years from June 14,1905, at an annual rental of $400, to be paid in quarterly installments of $100, in advance. The first installment was paid when the lease was signed, and on July 7, the defendant notified the plaintiff that he had been induced to make the contract by representations that a proper siding could be procured from the Pennsylvania Railroad, which had not been performed and could not be performed; he thereupon rescinded and repudiated the lease, and withdrew from the premises. Suit was then brought to recover the next installment, and on the trial the defendant offered to prove that at the time the lease was signed, the plaintiff represented that he knew of his own knowledge and was sure, that a ground siding could be put in on the property, and further that he would see that such a siding was put in; that the siding connecting this with the adjoining property was under his control; that he would see that that siding was lowered two feet, or a greater distance if necessary, in order that a new ground siding might be put in, and that on the faith of these representations the agreement was signed, after stating that he had no knowledge himself about the siding, and that if the plaintiff was sure that it would be done, he would sign the lease, and further that the plaintiff knew at the time the representations were made that they could not be performed. It was objected that this offer was a mere contradiction of the written instrument. The objection was overruled, with an exception to the plaintiff, which forms the basis for the first assignment of error.
¶3The proof adduced in support of this offer fully supported it; soon after the lease was executed it was ascertained that the railroad company refused peremptorily to place a ground siding *590on the premises, or to make any other connection than by joining with a siding on the adjoining premises, which was supported on trestles and was several feet above the level of the ground. The character of the defendant’s contemplated business was of such a nature that this construction was not feasible, and it was fully explained at the time the contract was signed, and as this was a matter of vital importance as an inducing cause, they rescinded promptly and withdrew from the premises.
¶4The appellees waived a technical defense suggested in the affidavit, and offered to prove and defend on the real merits of the case. The testimony of all the witnesses, with the exception of the president of the appellee company, was admitted without objection, and no motion was made for binding instructions.
¶5The appellant offered testimony in rebuttal, and the case was submitted to the jury by the court without any points being submitted by the appellant. The trial judge stated: “When a man attempts to practically nullify the effect of a solemn instrument by verbal testimony, the law requires a very high order of evidence to substantiate his position; he must produce evidence that is clear, precise and indubitable and it must be absolutely convincing to the minds of the jurors.”
¶6This was not a case of the omission of a clause by mistake, but it is distinctly and directly alleged that the promise or inducement that was made to procure the execution of the lease was in regard to a fact about which the plaintiff had full knowledge, and of which the defendant had none, and, that a siding on the level of the ground was indispensably necessary to the conduct of the defendant’s business. Whatever confusion there has been in the past in regard to the character of proof necessary to vary the terms of a written agreement, this case must be controlled by Gandy v. Weclcerly, 220 Pa. 285, in which the authorities are fully considered, and it is there held, “ that where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admissible, although it may vary and materially change the terms of the contract, and, that the existence of a contempo*591raneous parole agreement between the parties, under the influence of which a note or contract has been signed, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, may always be shown when the enforcement of the paper is attempted.”
¶7The evidence was properly received under authority of Gandy v. Weckerly, and was submitted to the jury in a fair and adequate charge.
¶8The assignments of error are overruled and the judgment is affirmed.