*1 from Apart fully presumption.” sufficient rebut the husband interested of the testimony inadmissible husband and the second embittered wife who want her support majority which evidence child, clear, from being is sufficient” says very is far “fully evi- convincing following The is irrefragable. (a) relies: dence the majority principally occasion- only that the husband came to visit his wife during man when she was with another ally living had neighbors that three period conception; (b) that not seen the husband at they testified had (three house his wife blocks where lived away) birth; thirteen months before the child’s period son had tes- that husband’s (c) finally, 15-year-old her spent nights mother never any tified his another child. husband and this was corroborated by fact seen neighbors several (3) at of con- husband wife’s home during wasn’t ception away proving miles period. Furthermore, nine-month there during exception apparent (with world everybody a woman does Court) of this knows that majority or with man spend any have to nights, night, child that man. to have a order I dissent. I would For these reasons, vigorously Superior Court I would Order affirm established rule of this Court. reaffirm Company of Inc. Bauer v. P. A. Cutri Bradford, (et Appellants). al., *2 1969. Before Bell, Jones, C. J., March Argued JJ. Pomeroy, Roberts Eagen, O’Brien, Cohen, Mutmbaugh Mutmbaugh, Mutm- him R. T. & with baugh, appellant. for Angelí, Angelí, Angelí K.
James appellee. May 1969:
Opinion Mr. Justice Roberts, agency In in Brad- sold his insurance Pennsylvania cash ford, Rand unliquidated computed for- amount to *3 multiplied by yearly percentage mula based on a factor Appellee figures years. also renewal over a of agreed sign covenant-not-to-compete, exact to the proceed- longer of are no relevant. Rand terms which organize Center ed to the Bradford Insurance Area appellee Agency, employed commis- which Inc., paid per apply to month to basis and sion $500.00 purchase price Agency by of owed Rand. the still Subsequently Rand transferred his interest appellee appar- Agency to In Cutri Cutri. and agreed upon ently to as sum still owed $5,000.00 appellee purchase by and Cutri Rand, from the initial appellee. agreed pay At the time, to that sum to same appellee agreed appellee orally would Cutri and Agency employee, a salaried to with the continue per paid a sum which later was month, $500.00 Appellee per again en- month. once to raised $550.00 part covenant-not-to-compete, of into was tered agreement which contained the instrument pay appellee agree- agency $5,000.00. would “That Bradford Center Area Insurance stated ment pay [appel- agrees Agency, to over to the Seller Inc. upon ($5,000.00) and Dollars Thousand lee] Five here- which is receipt execution of this Agreement, of of in full satisfaction acknowledged by Seller, (Emphasis supplied.) original agreement.” Despite appellee paid was not acknowledgement, ob- appellee Cutri to help $5,000.00, although to Appellee tain a loan that amount. continued P. Cutri work for the which became the Agency, point, of until At that Inc. 1967. Company Bradford, pur- obligations and its and were Appellant appellant chased this action. by Sturm, appel- been an and employee had also the Agency, lee had known of appellant’s purchasing interest likewise knew company. Appellant appel- appellee between Cutri, lee’s acknowledgement receipt $5,000.00 owed to him. indication that gave prior had not in paid to reality him, made no claim for it. instituting suit, informed
After over the taking Agency, appellee discontinued, the latter’s salary being enjoin and threatened to insur- selling if appellee ance the area to do attempted Appel- so. have lee countered this suit bringing equity covenant-not-to-compete declared null and void paid to recover the which had never been him. The court below found for on both *4 after en- dismissing appellant’s counts, exceptions, judgment. Appellant tered a final decree and has part to that of that objections waived his the decree appeals down the strikes covenant-not-to-compete, from the $5,000.00 judgment. only first claims that it error Appellant the hear testimony below to concerning appellee’s court in question. nonreceipt Appellant $5,000.00 parol that violated testimony evi- maintains proof it was that rule since varied explicit dence
809 terms of appellee that which stated writing, indeed received been if has money. However “receipts law Commonwealth that are mere in no contractual acknowledgements are parol their nature and hence not to the subject are evidence rule . . Pa. 579, . .” v. 288 Wagner Marcus, receipt 136 Atl. 584, 847, 848 where (1927). Only represents an exclusive memorial of the contractual between evidence parties parol does the rule 66 apply. Id.) 362 Pa. Emery 142, 148, Estate, A. 2d receipt only 265 “The that a is (1949); rule 262, prima explained facie evidence of be may payment, involved does not when the parol, apply question not to the payment is fact of but as to the existence Bard of of See rights out the contract.” springing well v. The Willis 375 Pa. 100 A. n., Co., 503, 506, Guerrina, 2d n.1 (1953). Cf. Pronzato v. 104, 2d 297 v. Margi Pa. (1960); Peyton 2d 398 Pa. 156 A. otti, (1959). in before
There is that the case us question fact dispute payment”— volves as to “the merely did appellee whether did or not receive money is “the question. questioning but demand simply out springing contract,” entering the consideration money ing due, supra. Cf. Pronzato v. into agreement. Guerrina, admit for the court evi proper thus below It was paid. had never proving dence appellee’s recovery next claims Appellant equitable doctrines laches barred by should appellee did not inform since hands, unclean and/or owed the Agency for the until after appel- a claim make Appellant claims Agency. purchased lant had (or this action nonaction) prejudiced he was consider the ob- since appellee, *5 310 Ap- Agency.
ligation
purchase
when
to
negotiating
innocent
pellee
completely
claims that
conduct was
his
most
business sense
possessed
since he is not
realize
astute
and
kind,
result,
purchased
to
until after
money was owed
his
stopped paying
salary.
and
claim
appellee’s
It
is clear at
the outset
Of
at law.
one
money
normally cognizable
damage
covenant-not-
to have the
course since
asked
action was
null
declared
to-compete
void,
equitable
granted
properly
equity,
having
to re
chancellor was also free
relief
prayed for,
e.g.,
litigation.
other
raised
questions
See,
solve
418 Pa.
209
Arcadia Theatre Co. v. Sablosky,
34,
ap
2d 375
This does
(1964).
mean, however,
appellee’s
to defeat
can use
defenses
pellant
equitable
de
equitable
These
damages.
claim for
legal
“undeserving”
an
prevent
designed only
fenses are
chancel
appeal
to the
obtaining
plaintiff
remedies
the kind of extraordinary
“conscience”
lor’s
in no
prejudice
but
equity,
they
available
rule
it has
been the
at law. Therefore
rights,
legal
dealing
this Commonwealth
of law,
bound
follows and is
rules
equity
a court
deprive
considerations
equitable
not use
does
v.
Albright
Albright,
at law. See
of his rights
party
Abra
(1910);
Atl.
898-99
77
560-61,
896,
on the have where it would books, apparent potential purchaser. to a The mere fact signed acknowledgement would carrying not excuse the debt on its paid. appear obligation books until it was If appellant’s Agency’s he it is fault that books, own investigate did not at least whether it had indeed been paid. judgment
The decree and of the Court of Common County party Pleas of McKean are affirmed. Each pa,y own costs. con-
Mr. Justice Cohen and Mr. Justice Pomeroy cur result. Opinion
Dissenting Bell: Mr. Chtef Justice majority again that an a of this Court holds Once unequivocal admission a written clear and absolute, paid plaintiff agreement re- a has been has specific money ($5,000) “in full satis- sum of a ceived agreement pay sum is of an faction” majority though nullity. meaningless The hold this even alleged or involved. or mistake is accident fraud, Company plaintiff for this worked Furthermore, years employee for three after he its successors writing acknowledged that he had received the above never once made claim $5000, mentioned fired. until after $5,000 Opinion inap- cases cited tbe are majority posite lengthy This is a clearly distinguishable. not mere written and is and con- receipt, parol evidence is not admissible. sequently I strongly For the above dissent. reasons, Commonwealth, Appellant. v. Holl, *7 C. J., Bell, Before 1969. April Submitted Pomeroy, Roberts Cohen, O’Brien, Jones, Eagen, JJ,