Paull v. Pivar

• Decision Date: 17 July 1947
• Citation: 53 A.2d 826,161 Pa.Super. 233
• Parties: Paull, Appellant, v. Pivar
• Court: Pennsylvania Superior Court

53 A.2d 826

161 Pa.Super. 233

Paull, Appellant, v. Pivar

Superior Court of Pennsylvania

July 17, 1947

Argued April 23, 1947.

Appeal, No. 170, April T., 1947, from judgment of C. P Allegheny Co., Jan. T., 1947, No. 311, in case of Leo L Paull v. Lillian Pivar.

Assumpsit.

Affidavit of defense raising points of law sustained and judgment entered for defendant, before McNaugher, Marshall and O'Toole, JJ., opinion by O'Toole, J. Plaintiff appealed.

J I. Simon, with him Robert A. Jarvis and Beck, McGinnis & Jarvis, for appellant.

John A. Metz, Jr., with him John A. Metz and Metz, & Metz, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Ross and Arnold, JJ.

OPINION

HIRT J.

In this action in assumpsit, plaintiff's statement of claim was filed on October 17, 1946; the action therefore is governed by the Practice Act of May 14, 1915, P. L. 483, 12 PS 382 et seq. To the statement of claim, defendant filed an affidavit of defense, under section 20 of the Act, 12 PS 471, questioning plaintiff's right of recovery, as a matter of law, on the cause of action there set forth. The lower court was of the opinion that its decision on the question so raised disposed of the whole of the claim and, in sustaining the statutory demurrer, entered judgment in favor of the defendant.

In substance, these material facts (supplemented by stipulation of counsel) are averred in plaintiff's statement and necessarily must be taken as admitted. Franklin Sugar R. Co. v. Lykens M. Co., 274 Pa. 206, 117 A. 780. In November, 1937, plaintiff entered into a written lease with the duly authorized agent of F. K. McCance and others, owners of the premises at 926 Liberty Avenue in Pittsburgh, for the term of 18 months ending April 30, 1939, at a monthly rental of $ 150. A rider attached, which became a part of the lease as though written into it (Landreth v. First Nat. Bk. of Phila., 346 Pa. 551, 31 A.2d 161) contains this provision: "The Tenant agrees, for the purpose of making alterations to the said premises, to spend a sum not to exceed $ 1,250.00. The Tenant shall render to the Lessor orhis Agent copies of all contracts and receipted invoices showing the cost of labor, materials, architects' fees, etc. expended on said work. In the event of the sale of the property, of which the demised premises are a part, Tenant agrees to give up quiet and peaceable possession of the herein demised premises at any time upon receiving sixty days' written notice so to do. In the event Tenant has complied with all of the terms and conditions of this lease, Lessor will pay, one day after Tenant vacates said premises, a sum not to exceed $ 1,250.00, as per the contracts and invoices previously submitted by Tenant." Plaintiff made the contemplated alterations of the premises and submitted to the owners receipted invoices for labor and materials in excess of that amount. At the expiration of the term, the lease with the above rider attached, was renewed for the additional term of one year and thereafter from year to year by written agreements of the parties. The lessors sold the demised premises on April 25, 1946, to defendant Lillian Pivar and assigned the original lease, as last renewed, to her. Defendant as assignee had all of the rights and assumed all of the obligations of the original lessor under the terms of the lease. On June 18, 1946, plaintiff removed from the premises pursuant to notice from the defendant in accordance with the terms of the final renewal agreement. On defendant's refusal of plaintiff's demand for the payment of $ 1,250 to him, this suit was brought.

We agree with the lower court that the parties, in all probability, did not intend to extend the provision for the reimbursement of plaintiff for the cost of repairs, beyond the term of the original lease; and that the lessors, through inadvertence, failed to so limit their obligation in the renewal agreements for the succeeding four years. But actual intent, where the contract is written, is ineffective, unless expressed in the writing. 3 Williston on Contracts, section 610. Each of the written agreements of 1939, 1940, 1941 and 1942, in identical language and with qualification, provided for "a renewal of the present lease . . . for the term of one year . . . at the same rental and without change in terms and conditions" of the original lease. (Italics added). If written words are to be given any meaning, plaintiff would have been entitled to reimbursement to the extent of $ 1,250 if dispossessed on sale of the property, not only during the term of the original lease but under four annual renewals thereafter which successively continued the lease to May 1, 1943. This conclusion is inevitable as a matter of law but has no bearing on an interpretation of the lease as modified by the last renewal agreement under which plaintiff was dispossessed. In construing the final lease the court properly found that plaintiff cannot recover on the cause of action pleaded by him and that the writings precluded the possibility of a better statement of claim by amendment. Adler, Admr., v. Helsel, 344 Pa. 386, 25 A.2d 714. The case was clear and free from doubt (Jamestown Iron & M. Co. v. Knofsky et al., 291 Pa. 60, 139 A. 611) and the judgment in defendant's favor must be affirmed.

Each of the...