Black v. Cinquegrani
| Decision Date | 23 July 1948 |
| Docket Number | 2074 |
| Citation | 163 Pa.Super. 157,60 A.2d 898 |
| Parties | Black et ux. v. Cinquegrani et ux., Appellants |
| Court | Pennsylvania Superior Court |
Argued April 15, 1948.
Appeal, No. 73, April T., 1948, from judgment of County Court, Allegheny Co., 1945, No. 474, in case of John H. Black et ux. v. James V. Cinquegrani et ux.
Assumpsit. Before McBride, J.
Verdict for plaintiffs and judgment entered thereon. Defendants appealed.
Abraham Pervin, for appellants.
Zeno Fritz, with him F. J. Zappala, for appellees.
OPINION
DITHRICH J.
Appellants were the owners of a building at 3057 Preble Avenue, Pittsburgh, where they conducted a restaurant for which they had a restaurant liquor license for the license year 1944-45. On March 7, 1945, they entered into a written agreement with John H. Black, husband appellee, the material part of which was that "the said parties agree to sell and convey to the said party of the second part restaurant liquor license TR9943, and the restaurant with all the furniture and fixtures" and the real estate situate at 3057 Preble Avenue. (Emphasis added.) The consideration was $ 7800.
Prior to March 7, 1945, the date of the agreement of sale, James V Cinquegrani, the husband appellant, had applied to the Pennsylvania Liquor Control Board for a renewal of the liquor license for the premises and had deposited with the Board the requisite $ 600 renewal fee. The Pennsylvania Liquor Control Act of November 29, 1933, P. L. 15, § 409, as amended, 47 PS § 744-409(b) provides in part that all applications for renewal of licenses shall be filed at least sixty days before the expiration date of same, which in this case was April 30, 1945. The transfer of the license was approved April 11, 1945, and plaintiffs were required by the Liquor Control Board to deposit the sum of $ 600 as a renewal fee for the license year beginning May 1, 1945, and ending April 30, 1946. The Board then refunded the $ 600 renewal fee which Cinquegrani had deposited with it. Plaintiffs, contending that the consideration of $ 7800 which they had deposited in escrow pending the approval by the Liquor Control Board of the transfer of the license covered the license fee as well as the license, demanded of defendants the sum of $ 600 and, upon their refusal to turn it over to them, they brought this action in assumpsit. The jury found for plaintiffs and from the refusal of their motions for judgment n. o. v. and a new trial defendants have brought this appeal.
Plaintiffs' pleadings consist of a statement of claim, an amended statement of claim, and an amendment to the amended statement of claim. The original statement was amended by attaching thereto a copy of the written escrow agreement and by adding thereto that "At the time the aforesaid written agreement was entered into . . . it was orally understood and agreed by and between the parties . . . that the defendant . . . was to and did sell, assign and transfer any and all rights that he had, or was to have in and to the said renewal of the said liquor license including the said sum of Six Hundred ($ 600.00) Dollars and that the plaintiffs were to pay nothing in addition to the said sum of $ 7,800.00 . . ."
After defendants had filed separate answers to the amended statement of claim (the wife defendant denying that she had anything todo with respect to the transfer of the liquor license which was in the name of her husband alone), plaintiffs filed an amendment to their amended statement in which they averred that the understanding of the parties in respect of the license renewal fee was "omitted from the . . . written agreement by reason of the oversight, inadvertence and mistake of the parties . . . and their respective counsel . . ."
At the trial they offered no evidence of mistake. They did, however, offer, and it was admitted over objection by defendants, parol evidence "to identify and describe [the] subject-matter of the contract," or, in the language of the learned trial judge "to explain . . . what they meant by the transfer of the liquor license" or "what the intention of the parties was at the time the agreement was drawn up." (Emphasis added.)
The evidence was clearly inadmissible. To begin with, defendants did not have a liquor license for the year 1945-46. The license they had, and that in the name of the husband alone expired April 30, 1945. All they could possibly transfer, and the only transfer the Liquor Control Board could or did approve, was the transfer of the license for the remainder of the license year 1944-45. Section 408(b) of the Liquor Control Act provides in part that "Whenever any license is transferred, no license or other fees shall be required from the person to whom such transfer is made for the balance of the then current license year." That section cannot be construed to mean other than that whenever any license is transferred the word "license" means license for the balance of the current license year. That, undoubtedly, was why the Board returned to the transferor the renewal fee he had deposited with his application for the renewal of his license and sent to the transferees an application for the renewal of the license which had been transferred to them. Without making any demand on defendants or even saying anything to them about it, plaintiffs filled out the renewal application and forwarded it to the Board with the $ 600 renewal fee. If, as they now say, it was the understanding of the parties that Cinquegrani "was to and did sell, assign and transfer any and all rights that he had" to the $ 600 he had deposited with the Liquor Control Board, it is strange that they would make an additional deposit of the same amount without first taking the matter up...
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