Lessa v. Staler

• Decision Date: 05 March 1921
• Docket Number: 285-1920
• Citation: 75 Pa.Super. 468
• Parties: Lessa v. Staler, Appellant
• Court: Pennsylvania Superior Court

75 Pa.Super. 468

Lessa v. Staler, Appellant

No. 285-1920

Superior Court of Pennsylvania

March 5, 1921

Argued October 21, 1920

Appeal by defendant, from order of Municipal Court of Philadelphia-1920, No. 111, making absolute rule for judgment for want of a sufficient affidavit of defense, in the case of D. Lessa v. S. Staler.

Rule for judgment for want of a sufficient affidavit of defense.

The facts are stated in the opinion of the Superior Court.

The court made absolute the rule. Defendant appealed.

Error assigned was the order of the court.

Herman J. Tahl, for appellant.

Herbert P. Sundheim, of Sundheim, Foltz & Sundheim, for appellee.

Before Orlady, P. J., Porter, Henderson, Head, Trexler, Keller and Linn, JJ.

OPINION

HENDERSON J.

The defendant appeals from a judgment entered in the Municipal Court of Philadelphia for want of a sufficient affidavit of defense. It is not denied that he signed the written agreement, by the terms of which he agreed to pay to plaintiff a commission of two per cent for selling the property at No. 1432 N. Franklin street, for the price of $ 6,300, which agreement was in confirmation of a parol agreement made a short time before. It is admitted that the plaintiff found a purchaser who entered into a written agreement with the defendant for the purchase of the property for a price and on terms satisfactory to the latter. The defense to the action is that it was the understanding between the plaintiff and the defendant at the time the writing was signed that the commission for the sale was not to become due unless final settlement was made by the purchaser, and the defendant had received the purchase price therefor, but " due to the mistake of the scrivener" in not expressing in said writing that the commission for the sale shall not become due until final settlement was made and the defendant received the purchase price therefor, that said understanding was omitted from said writing. The contract sued on is brief and in simple form and relates to a single subject. It is in plain and unambiguous terms and easily understood by one who has the intelligence to read it. The defendant signed it. It is not alleged that his signature was attached thereto through any act of the plaintiff by which he was misled. It is not asserted that the defendant could not read, or that he did not read it, or that the scrivener wrongfully informed him as to its contents. Defense is sought therefore by impeachment of an...