Sferra v. Urling
| Decision Date | 12 November 1937 |
| Docket Number | 144 |
| Citation | 328 Pa. 161,195 A. 422 |
| Parties | Sferra, Appellant, v. Urling et al |
| Court | Pennsylvania Supreme Court |
Argued October 4, 1937
Appeal, No. 144, March T., 1937, from judgment of C.P. Beaver Co., March T., 1936, No. 225, in case of Angelina Sferra v Walter B. Urling and James Slanicus, intervening defendant. Judgment affirmed.
Proceeding upon feigned issue of ejectment after opening of judgment entered upon lease. Before WILSON, J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for defendant. Plaintiff appealed.
Errors assigned, among others, were refusal of various points for charge.
Judgment affirmed.
Forest G. Moorhead, with him John G. Marshall and George W. Moorhead, of Moorhead & Marshall, for appellant.
Frank E. Reed, of Bradshaw, McCreary & Reed, for appellee.
Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
We held when this case was here before, 324 Pa. 344, that there was no abuse of discretionary power by the court below in opening a default judgment for rent, as there was sufficient evidence to support findings of a waiver of compliance with the covenant requiring written consent to an assignment of the lease, and the existence of an oral agreement whereby appellee was to pay rent on a percentage basis rather than in accordance with the provisions of the lease calling for fixed monthly payments. The facts were fully stated in that appeal.
This appeal is from the judgment in favor of the tenant, appellee, in a feigned issue of ejectment wherein appellants were the plaintiffs, and Urling and Slanicus the defendants. Supplemental to its general verdict the jury expressly found that Slanicus was in possession as a tenant, and that there was an agreement changing the rent to a percentage basis.
Appellants' main contentions are that the failure of appellee to comply with the terms of the assignment prohibits him from claiming any rights under it, and that the terms of the oral agreement modifying the lease are so vague and lacking in precision as to render it void for uncertainty. Appellants reiterate the contention, pressed in the former appeal, that the provision in the lease requiring the lessors' assent in writing to an assignment is binding and not subject to waiver, and they now seek to avail themselves of the protection of the statute of frauds.
Consideration will first be directed to the subsidiary contention of appellants that section one of the Act of March 21, 1772, 1 Sm. L. 389, providing that oral leases exceeding the term of three years shall have the effect of estates at will only, prevents a parol modification of a written lease exceeding that period. As this question was not raised in the court below, and appellants refrained from pressing it seriously on the first appeal, it was not discussed when the case was here before. We might dismiss the question by observing our usual rule, that the case on the first appeal having been decided on the issues presented, returned to the court below for trial under the legal principles set forth, and tried under the law as there stated, it is too late on the second appeal to raise a new theory or objection that should have been presented at the first trial. Appellants now press vigorously the proposition that the statute of frauds invalidates the parol modification of the lease with respect to the rent due thereunder.
It appears that there is nothing in the present record giving the slightest intimation on their part to seek the protection of the statute either by a special plea, objection to the admission of evidence, or point for charge. Appellants did not plead the statute of frauds in their answer to appellee's petition to intervene and open judgment; nor at the taking of depositions did they interpose an objection to the evidence adduced in proof of the parol modification of the rental provision; nor does it appear that they expressly brought this matter in any other form to the attention of the court below. The same is true in the present appeal. They failed to amend their answer to include the statute of frauds, and again they did not object to the admission of testimony for this reason. Is then section one of the Act of 1772, supra, a rule of substantive law, which must be applied by the trial court in spite of the fact it is not called to the court's attention in any manner, or is the failure to invoke the statute at some stage of the proceedings prior to appeal an irrevocable waiver of it by the party who would derive advantage from its application?
That considerable conflict exists among the authorities as to the necessity of invoking the statute of frauds by special plea or otherwise is made quite apparent from a review of the collection of cases to be found in 27 C.J. 368, et seq., and more recent cases. Some jurisdictions have adopted the rule that the statute of frauds must be specially pleaded in order to be taken advantage of at trial: Sinclair v. Purdy, 139 N.E. 255 (235 N.Y. 245); Stout v. Fuqua, 103 S.W. (2nd) 28 (Tenn., 1937). [1] Other jurisdictions relax this rule in the event of a denial of the existence of the oral contract, holding that the denial operates to invoke the statute by necessitating proof of a valid contract. Thus in Jones v. Jones, 63 S.W. (2nd) 146 (Mo., 1933), the court said a denial of the oral agreement, compelling proof of one which is invalid under the statute of frauds, is sufficient, pointing out that it is only where the contract is admitted that the statute must be pleaded specially. See Barnes v. P. & D. Mfg. Co., 187 A. 186 (117 N.J.L. 156), and Kennedy v. Burns, 101 S.E. 156 (84 W.Va. 701). [2]
The great weight of authority sustains the view that it is incumbent upon a party, who seeks to derive protection from the statute of frauds, even though he has entered a denial of the alleged oral contract, to make manifest his intention to invoke its aid either by way of special plea, objection to the admission of testimony, or point for charge to the jury, and if he fails to bring it to the attention of the court he will be deemed to have waived all right to lay claim to its protective features. See Hanson v. Hanson, 202 N.W. 645, 647 (52 N.D. 146); Brown v. Kausche, 167 P. 1075 (98 Wash. 470). [3]
Our research discloses no authority in this state directly settling the question of the necessity of invoking section one of the Act of 1772, supra. However, the question involved arose under section 4 of the Sales Act of May 19, 1915, P.L. 543, and in Am. Products Co. v. Refining Co., 275 Pa. 332, opinion by Justice SADLER, we held that a denial of existence of an oral contract for the sale of oil was sufficient to permit defendant to invoke the statute of frauds after verdict on a motion for a judgment n.o.v., but that plaintiff could amend by averring facts which would remove the ban of the statute, being misled by defendant's failure to call attention to this defense either in his pleadings or during the reception of testimony to prove the existence of the oral agreement. The reason for the rule was that section 4 of the Sales Act expressly provides that contracts within its inhibition shall be "unenforceable," and thereby constitutes a "limitation on the power of the judiciary to afford a remedy," as distinguished from a "mere rule of evidence." Since all remedy for the enforcement of the contract was taken away, it was wholly outlawed by section 4, which could not be treated as a personal defense. The opinion, in commenting on the effect of the Act of 1772, supra, states at p. 335:
The statute of frauds does not absolutely outlaw oral contracts relating to land. It has long been established that a contract within the statute of frauds will be accorded full legal effect if those who are entitled to the protection of the statute choose to affirm the existence of the contract and recognize it as binding on them. See Lloyd's Appeal, 82 Pa. 485; Christy v. Brien, 14 Pa. 248. In Houser v. Lamont, 55 Pa. 311, this court stated at p. 317: "It is settled equity law that courts of equity will enforce specific performance of a contract within the Statute of Frauds, where it [the contract] is confessed in the answer of the defendant: 2 Story's Equity, section 755." It is pointed out that under a statute designed to guard against fraud and perjury in oral contracts there can be no danger when the contract is admitted, since it is not within the mischief intended to be guarded against.
The same is true under the Act of April 22, 1856, P.L. 532 section 4. The Act reads: "All trusts . . . of any lands . . ., and all grants and assignments thereof shall be manifested by writing, . . ., or else to be void: . . ." This language, though strong, does not outlaw all trust instruments which do not meet the required form, but they may be enforced providing those who would...
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