C. I. T. Corp. v. Jonnet

• Decision Date: 23 November 1965
• Citation: 419 Pa. 435,214 A.2d 620
• Parties: , 3 UCC Rep.Serv. 968 C. I. T. CORPORATION, a corporation, v. Elmer J. JONNET, Jr., an individual, and Miracie Lanes, Inc., a corporation, Appellants.
• Court: Pennsylvania Supreme Court

Page 620

214 A.2d 620

419 Pa. 435, 3 UCC Rep.Serv. 968

C. I. T. CORPORATION, a corporation, v. Elmer J. JONNET, Jr., an individual, and Miracie Lanes Inc., a corporation, Appellants.

Supreme Court of Pennsylvania.

Nov. 23, 1965.

Samuel M. Rosenzweig, Aaron Rosenzweig, Pittsburgh, for appellant.

Joseph A. Katarincic, Henry W. Fulton, Jr., Harry Woodruff Turner, Kirkpatrick, Pomeroy, Lockhart & Johnson, Pittsburgh, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

MUSMANNO, Justice.

On January 30, 1961, the Commercial Appliance Company in Pittsburgh, sold to the Miracle Lanes, Inc., under a written conditional sales contract, a quantity of restaurant and bar equipment for the total sum of $33,655. On the same day, Elmer J. Jonnet, Jr., in his individual capacity, guaranteed in writing, as surety, Miracle Lanes' obligations under the contract. The Commercial Appliance Company assigned its right against Miracle Lanes and Jonnet to the C.I.T. Corporation, which had financed the transaction.

Through installment payments, Miracle Lanes had, by May 29, 1964, paid $19,322.85, leaving an unpaid balance of $12,197.13. The C.I.T. Corporation brought an action in assumpsit for this sum against Miracle Lanes and Jonnet. The defendants filed an Answer averring that, beginning with June, 1964 payments----

'Were to have been made by Penn Hills Center, Inc. assignee of lease for cocktail lounge in which equipment described in these proceedings is located. To defendants' best knowledge and information and belief by the assumption thereof, arrangements were made whereby defendants herein were released from further liability on the documents herein described.'

Apparently aware that such a nebulous defense would quickly melt into a judgment for the plaintiff, the defendants filed an amended Answer where the nebulosity of the original Answer drifted into a rhetorical cloud of different shape but of no greater tangibility. It said:

'Defendants further allege and aver that in June of 1964 when Penn Hills Center, Inc., became assignee of the Lease for the Cocktail Lounge Plaintiff through its authorized agent and representative was apprised thereof and consented thereto and payments were made on account of the security agreement by the assignee to the Plaintiff. Defendants also allege and aver that Plaintiff's authorized agent representative did release the defendants from further liability therein.'

In short order, the Court below, upon appropriate motion by the plaintiff, granted judgment on the pleadings in favor of the plaintiff, plus $1,000 for attorneys' fees, stipulated in the conditional sales contract.

The defendants appealed, contending that their averments 'were sufficient to bring into issue the question of the existence of a subsequent parol agreement between the parties to modify the original written contract by way of a substitution of a party and the release of the original debtor.' Nowhere, however, do the defendants allege cancellation by the plaintiff of the express term of the original conditional sale contract that 'no waiver or change in this contract or related note, shall bind such assignee (in this case, the plaintiff) unless in writing signed by one of its officers.'

This specific condition stands as a stone wall in the path of the defendants' contention. However, they believe they have found a way around this formidable barrier by citing the case of Kirk v. Brentwood M. H., Inc., ...