Bardwell v. Willis Co., Inc.

• Decision Date: 09 November 1953
• Parties: BARDWELL et al. v. WILLIS CO., Inc.
• Court: Pennsylvania Supreme Court

100 A.2d 102

375 Pa. 503

BARDWELL et al. v. WILLIS CO., Inc.

Supreme Court of Pennsylvania.

November 9, 1953

Action in trespass for alleged actual damages and estimated loss of profits suffered as result of misrepresentations made by defendant's agent during negotiations prior to execution of real estate lease. The Court of Common Pleas of Erie County, at No. 509, May term, 1951, Elmer L. Evans, J sustained preliminary objections and dismissed the action and plaintiffs appealed. The Supreme Court, No. 6, March term 195o, Bell, J., held that where plaintiffs averred that all representations concerning the premises were fraudulently made, but did not aver that they were fraudulently, or by accident or mistake omitted from subsequent complete written lease, the alleged fraudulent misrepresentations could not be proved to modify or avoid the lease.

Order affirmed.

John M. Wolford and Lindley R. McClelland, Erie, for appellants.

Marsh Spaeder, Baur & Spaeder and Byron A. Baur, Erie, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO, and ARNOLD, JJ.

BELL Justice.

Plaintiffs brought an action in trespass for alleged actual damages and estimated loss of profits suffered as a result of misrepresentations made by defendant's agents during the negotiations prior to the execution of a real estate lease for a property in Erie. Preliminary objections in the nature of a demurrer were sustained by the Court below.

Plaintiffs averred that they contemplated engaging in the business of bottling Hires Root Beer and informed defendant's representatives that their business required a location with ‘ ample water facilities for several operations', ‘ larger drainage facilities for operations', ‘ definite electrical facilities and switchboard for operation’ and ‘ heating facilities capable of quickly heating water to required temperatures and keeping said premises warm’ . The extent of such facilities necessary to meet these descriptive terms is not averred; nor is it averred that the defendant had any information or knowledge with reference thereto. Averment is made, however, that the defendant's agents falsely, intentionally and fraudulently represented at the time the premises were being inspected that the facilities thereon met the standards required by plaintiffs and that in reliance upon such representations a five-year lease beginning May 1st, 1947, was entered into.

Six monthly installments of rent, in accordance with the terms of the lease, were paid; thereafter plaintiffs defaulted in their rent. On June 3, 1948 The Charles E. Hires Company terminated plaintiffs' franchise rights and the defendant issued a landlord's warrant for unpaid rent, which was followed by a sale of plaintiffs' assets on said premises. The damages claimed in this suit are the rental payments made, the value of machinery and equipment sold under the landlord's warrant, and anticipated profits to the expiration of the lease totaling altogether $61,056. Plaintiffs averred that the financial losses above mentioned were caused entirely by loss of business due to the fact that the rented premises were not, as represented, fit for the intended use.

Attached to the bill of complaint is a copy of the written lease executed by the parties, one clause of which reads as follows: ‘ Second parties (the tenants who are the present plaintiffs) covenant and agree as follows: That they have examined and are familiar with the condition of the premises and buildings thereon, and that the same are received in good order and condition without warranty as to the condition or repair thereof by the first party for their intended use.’ Another clause in the lease is as follows: ‘ This lease agreement contains the entire contract and agreement between the parties .’

Where the alleged prior or contemporaneous oral representations or agreements concern a subject which is specifically dealt with in the written contract, and the written contract covers or purports to cover the entire agreement of the parties,^[1] the law is now clearly and well settled that in the absence of fraud, accident or mistake the alleged oral representations or agreements are merged in or superseded by the subsequent written contract, and parol evidence to vary, modify or supersede the written contract is inadmissible in evidence. Phillips Gas & Oil Co. v. Kline, 368 Pa. 516, 519, 84 A.2d 301; Grubb v. Rockey, 366 Pa. 592, 79 A.2d 255; Walker v. Saricks, 360 Pa. 594, 63 A.2d 9; Gianni v. Russell & Co., Inc., 281 Pa. 320, 126 A. 791; Speier v. Michelson, 303 Pa. 66, 154 A. 127; O'Brien v. O'Brien, 362 Pa. 66, 66 A.2d 309, 10 A.L.R.2d 714; Russell v. Sickles, 306 Pa. 586, 160 A. 610.

There is not the slightest doubt that if plaintiffs had merely averred the falsity of the alleged oral representations, parol evidence thereof would have been inadmissible. Does the fact that plaintiffs further averred that these oral representations were fraudulently made without averring that they were fraudulently or by accident or mistake omitted from the subsequent complete written contract suffice to make the...