Curry v. Bacharach Quality Shops, Inc.

• Decision Date: 01 July 1921
• Docket Number: 424
• Citation: 271 Pa. 364,117 A. 435
• Parties: Curry v. Bacharach Quality Shops, Inc., Appellant
• Court: Pennsylvania Supreme Court

117 A. 435

271 Pa. 364

Curry v. Bacharach Quality Shops, Inc., Appellant

No. 424

Supreme Court of Pennsylvania

July 1, 1921

Argued May 17, 1921

Appeal, No. 424, Jan. T., 1921, by defendant, from order of C.P. No. 2, Phila. Co., Sept. T., 1920, No. 8177, discharging rule to open judgment, in case of William Curry v. Bacharach Quality Shops, Inc. Reversed.

Rule to open judgment entered on warrant to confess in lease. Before BARRATT, P.J.

The opinion of the Supreme Court states the facts.

Rule discharged. Defendant appealed.

Error assigned was order, quoting it.

For these reasons the motion to quash is denied; the order of the court below discharging the rule is reversed; the rule is reinstated and it is ordered that the same be made absolute the judgment is directed to be opened, the court below to make the usual orders that the proceeding may be duly prosecuted to final determination. Writ stayed meanwhile pending final determination; appellee to pay costs.

George Wharton Pepper, with him R. W. Archbald, Jr., for appellant. -- There was consideration for the option paper so that it was binding on Stafford.

The principal's own oral promise, unenforceable because of the statute of frauds, is made good by a subsequent writing: Anderson v. Best, 176 Pa. 498.

That part of the statute of frauds which deals with promises to answer for the debt of another, has been treated in the same way: Title Guaranty & Surety Co. v. Lippincott, 252 Pa. 112.

A decision which exactly meets the situation in the present case is: Hurless v. Wiley, 91 Kan. 347; L.R.A. 1915 C 177.

In spite of the parol evidence rule, the consideration for a written promise may always be shown by parol: Jack v. Dougherty, 3 Watts 151; Strawbridge v. Cartledge, 7 W. & S. 394; Buckley's App., 48 Pa. 491; Lewis v. Brewster, 57 Pa. 410; Sargeant v. Ins. Co., 189 Pa. 341; Henry v. Zurflieh, 203 Pa. 440; Miles v. Waggoner, 23 Pa.Super. 432; McGary v. McDermott, 207 Pa. 620; Tasin v. Bastress, 268 Pa. 85.

The testimony in this case shows the familiar exception to the parol evidence rule, viz: a contemporaneous oral promise by means of which defendant's signature was obtained to the lease of August 4th; and it thus further appears that the consideration was not past, and that the option really dates back to the time of execution of the lease: Gandy v. Weckerly, 220 Pa. 285; Noel v. Kessler, 252 Pa. 244.

The option of extension is a complete and definite agreement: McDonald v. Karpeles, 61 Pa.Super. 496.

The benefit of the release of errors and waiver of appeal has not passed to appellee as assignee of the lessor: Jenks v. Hendley, 6 Phila. 518.

Neither the release of errors nor the waiver of appeal properly construed bars an appeal from a refusal to open the judgment in ejectment: Dawson v. Condy, 7 S. & R. 366; Phila. v. Johnson, 23 Pa.Super. 591; Fogerty v. Dix, 75 Pa.Super. 214.

Horace M. Rumsey, with him Hiram B. Calkins, for appellee. -- Where the oral agreement is contemporaneous, it must be shown to have been omitted through fraud, accident or mistake from the writing, otherwise evidence of it will not be admitted. This would seem to be the effect of the decision in Gandy v. Weckerly, 220 Pa. 285.

A contemporaneous oral agreement which directly contradicts the terms of a written contract should not be received in evidence: Clarke v. Allen, 132 Pa. 40; Martin v. Berens, 67 Pa. 459; Clinch Val. Coal & I. Co. v. Willing, 180 Pa. 167.

A covenant for renewal must be founded on a consideration, and a covenant gratuitously entered into, subject to the execution of the lease, will not be enforced.

Notice to William Curry of the so-called option, prior to the time when he secured title, was not such notice as would bind his title: Coleman v. Applegarth, 68 Md. 21.

A stipulation, contained in a written instrument, waiving a right of appeal, is valid and binding, and precludes the taking of an appeal from an order of the court in a suit on the written instrument: Groll v. Gegenheimer, 147 Pa. 162; McCahan v. Reamey, 33 Pa. 535; Shisler v. Keavy, 75 Pa. 79; Williams v. Danziger, 91 Pa. 232; Sergeant v. Clark, 108 Pa. 588; Cramp Co. v. Casket Co., 241 Pa. 15.

Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE KEPHART:

This is an appeal from an order of the court below discharging a rule to open a judgment entered upon a lease. August 4, 1917, appellant, by a judgment-ejectment lease, acquired from John Stafford, Sr., for a term of three years, the first floor and basement of 1114 Chestnut Street, Philadelphia. A few days later, August 8th, it received a paper from the owner, reading: "It is mutually understood between us that in consideration of your signing a lease covering the first floor store and basement of No. 1114 Chestnut Street for a period of three years from November 1, 1917, that the option of an extension of either two or seven additional years is hereby given to you, with the provision that, in the event of the option being exercised, notice shall be given me to that effect in writing at least three months prior to the expiration of the above-mentioned three years from November 1, 1917. Jno. Stafford." This was approved by appellant.

It is appellee's contention that prior negotiations were merged in the written contract of lease and the option was but an oral promise to alter or vary the terms of the written instrument, and, being contemporaneous with the original agreement and not having been omitted therefrom through fraud, accident or mistake, evidence of the oral promise cannot be received. Undoubtedly, had the latter been incorporated in the lease or delivered with the lease, there could be no question but it was a part of that instrument; an examination of the paper shows, though dated four days after, the interval of time made no difference and it was intended to be a part of the instrument under which appellant took the property. It is complete in itself, having in it all that is necessary to make it clear and explicit. Appellee urges there was no consideration for the option as the lease had been executed and grantor's act in giving the option was a mere gift; or, if other consideration existed, it must be shown by parol, and, being an essential element of the contract, it is within the statute. The option speaks in this language: "In consideration of your signing a lease." John Stafford was not called to testify the paper was given as an after-thought or a gift, and that there was no real consideration moving to him; effect must be given the option in the light in which the then owner regarded it. The inference is strong it came as the result of an understanding between the parties, arrived at during the negotiations for the lease, to be executed and given in the manner indicated above; the real consideration, then, was the signing of the lease. Moreover, the testimony bears out the conclusion and presents such a meritorious case that it is difficult to understand how a contrary inference could have been reached. The option, including the consideration, is not parol evidence; it is written evidence, complete in itself, and would require other evidence to destroy its effect. "In consideration of your signing this lease" expresses an adequate consideration, and, in connection with the written lease already in existence, sufficient to move the owner to act. To conclude otherwise, evidence should be produced to show that there was no consideration moving to the owner. Without such proof, a written instrument cannot be made of no effect simply because there is a slight difference in the date of another paper of which it unquestionably is a part, and this without the testimony of the only person then affected. The mere interval of time does not destroy the concrete fact, reduced to writing, "in consideration of your signing this lease, I give you this option." An oral promise, unenforceable because of the statute of frauds, may be made good by a subsequent writing. "The statute does not declare the contracts upon which those promises were made either illegal or void. It simply refuses to enforce them unless proved by a writing. When the defendant put his promise to pay in writing he obviated all difficulty from the statute. The original promises could not have been recovered upon, but this judgment is not on the original promises but on the written undertaking to pay": Anderson v. Best, 176 Pa. 498, 502. We need not consider the statute of frauds in connection with the option; it has been thoroughly treated in Title G. & S. Co. v. Lippincott, 252 Pa. 112, 116 et seq., by our present Chief Justice.

We are of opinion the option related back to and was part of the lease; it evidences Stafford knew about the transaction between his son and appellant, and, as appears from the testimony, the lease and option carried out precisely his idea and the agreement the parties made. Indeed, if necessary to the decision, the moral obligation arising from the evidence in connection with the negotiations would support the written option as sufficient consideration: Anderson v. Best, supra, 502.

When the lease was executed, the property was subject to a mortgage held by John Cadwalader, who foreclosed and purchased it at sheriff's sale, taking an assignment of the lease. He made no effort to learn from the tenant the character of his holding but continued to receive the rent from him. Cadwalader knew there was an outstanding option. Just when he learned of it does not appear, but a year later he notified lessee he disaffirmed it. This was too late. A purchaser at sheriff's sale has the right to affirm or disaffirm the lease, and, if he elects the former course, may require the rent to be paid to...