*1 I in happier decisions, laid down tribunal very perforce, must,
Dissent. Berger, Equipment Appellant, Pittsburgh Auto
Company. *2 September Argued Before C. J., 1956. Stern, JJ. Bell, Musmanno Jones, Chidsey, Arnold, Leonard M. with him Mendelson, Mortimer B. for appellant. Lesher,
John K. with him Tabor, Stuart N. Hutchison, Jr., Aims C. Coney, Jr., Kirkpatrick, Lock Pomeroy, hart & for Johnson, appellee.
Opinion No- Mr. Chief Justice Horace Stern, vember 1956: principle controls the present of this stage is a
controversy proceeding open a and un- addressed to the sound discretion of the court, clearly discretion its action will not less abuses that appeal: Deviney Lynch, on Pa. 570, be disturbed 578. Pittsburgh Berger, and David defendant, Plaintiff, Equipment Company, a Auto entered intо agreement whereby defendant for leased to portion storage purposes of a cer- of the second floor Pittsburgh, property for term tain on Centre Avenue, years commencing December tenant two option the term for an additional to have renew option years. and the two Defendant exercised this years accordingly end- lease more extended two ing October, 1954, November 1955. However, whereupon plaintiff, premises, defendant vacated *3 acting power attorney in the lease, a of contained under against judgment defendant for entered a confеssion of the term, of the rent for the remainder balance attorney’s together in the total sum with commission, |3,958.50. of opened petition have the
Defendant’s plaintiff engaged alleged it was was aware, that, supplies equipment, parts, sale of automobile pounds storage weights of 300 which involved plaintiff square flooring; per had foot of and more prior agent represented the execution to defendant’s premises, hav- the demised that the floor of of the lease sufficiently strengthened, repaired ing was been weight strong of the merchandise to withstand normally that defend- store thereon; dеfendant would rep- on this material lease in reliance executed ant subsequently found that the it was resentation; withstanding incapable the minimum even floor was ordinarily square pounds per foot re- weight of 125 Pittsburgh City Building quired Code storage purposes. building eligible It for to make a application further that defendant filed was purposes, occupancy for such a certificate of application extensive re- refused unless certain plaintiff pairs and when and alterations were made, requirement comply defendant va- with this refused to premises. cated the support produced hаving
Defendant witnesses plaintiff thereof, in contradiction these averments opinion way “In held that our the court jury de- are is to have the true facts discover Avhat termine them.” principal since all contention is that,
Plaintiff’s agreements negotiations preliminary are and verbal subsequent superseded by con- merged in agreement be- the entire the lease constituted tract, parties, averment in the absence of an and, tween not be its terms could or mistake, accident of fraud, evidence. subtracted from added to nor misconception in defend- is involved of what is a total peti- open judgment. petition What the ant’s alleges not a contractual made, is that tion promise con- should have been Avhich could not be lease and therefore in the written tained testimony, an ex- a statement of but to it added storage strength isting the floor for fact as to the negotiated plaintiff’s purposes; who witness, indeed *4 the that he knew that his stated lease on behalf, the pounds only weight 120 to 125 sustain a floor would making although square of the per denied the he foot, misrep- A him defendant. attributed statement though innocently material even fact, of a resentation upon party as intended the othеr relied if made, upon right the the latter confers should be, that it falsity representa- the contract when the rescind tion is discovered: LaCourse Kiesel, 77 A. 2d 880. The of the evidence purpose here presented defendant was not alter or vary the terms of the written but to rescind it instrument, in its because of the entirety factual misrepre- sentation which induced defendant to enter into it.
Apart
from this general contention, plaintiff urges
two reasons
the
should not have been
why
opened. The one is based
the fact
contem-
upon
that,
with the execution of the lease
poraneously
agreement,
one of the
parties
a collateral
signed
agreement,
prolusions
inspect-
of which
that “The Tenant has
was
ed the
in its
accepts
pres-
property
ent condition.”
Plaintiff
argues
therefore,
even,
made as to
had been
alleged misrepresentation
it
superseded
strength
flooring,
the tenant.
part
nullified
this admission on the
as to any
be a valid argument
undoubtedly
but
condition
reasonably ascertainable,
of the property
ten-
held that
as to such conditions can
in Pennsylva-
this provision. Thus,
ant ivas bound by
nia
Turnpike
Smith,
Commission
Commis-
Turnpike
2d
where a contract Avith
as to the sub-
information
sion
contаin
purported
nature and approximate
surface conditions
but stated
to be excavated,
of the material
quantities
Avith conditions
himself
acquaint
that each bidder must
not
should
the work and that
contractor
affecting
of such
because
deception
plead misunderstanding
of the work
or of the
character
quantities
estimate
the contrac-
it was held
contract,
described
the inaccu-
to rely upon
had a right
tor nevertheless
in refer-
the misrepresentation
rate statements,
actual
not
even though
thereto was constructive
ence
been ex-
could not have
contractor
and that
fraud,
borings
to make
circumstances,
under
pected,
*5
in the
set forth
Ms
to check on the information
own
Thompson,
77 A. 2d
Following the line of demarcation thus established
present
it would seem clear
defend-
that,
case,
expected,
ant could not
been
nor
it have
have
practically
been
feasible for
make tests of the
it,
strength
flooring,
a condition which could have
expert
only by
engineer.
been ascertained
especially
testimony
true in view of defendant’s
plaintiff’s
pointed
posts
agent had
out steel beams and
recently
which he claimed had been
installed
purpose
strengthening
with the further as-
floor,
had used
that he himself
surance
past
storage
heavy
equipment.
for the
furnaces and
n
remaining contention is
since de
that,
Plaintiff’s
occupied
original
under the
two-
fendant
year period
year
the lease and for almost а
*6
period
extended
and had
rent
paid the
all that
during
it was
from
its
time,
estopped
removal from
justifying
premises because of plaintiff’s
misrepresen
tation
to the condition of the
made at the
flooring
time when the lease was entered into.
It is true that
it is the
of a
under such cir
ordinarily
duty
tenant,
if he wishes to disaffirm the
cumstances,
contract,
do so
he cannot continue to
prop
the
promptly;
occupy
the rent
for a
of time
erty
pay
period
and then
claim the
to rescind the lease
right
agreement on
that he
induced to enter
ground
ivas
into the contract
of
misrepresentations
the lessor or his agent:
Spaulding
Superior Ct.
139;
Justice,
133, 138,
Federal Metal Bed
v.Co.
Alpha
Sign Co.,
In our the court opinion warranted in fully so that opening questions the factual in- volved controversy ultimately can determined aby jury.
The order is costs to abide the event. affirmed, Dissenting Opinion by Mr. Justice Bell: I below which would reverse the Order of the Court was based on opened first, because it judgment, misconception because under law, secondly, facts manifest discretion. constituted a abuse of Plaintiff and defendant entered into a de lengthy, tailed or lease. the terms By lease pur leased to for storage defendant, a portion of the second floor on poses, property for a Centre term two Avenue, Pittsburgh, years the ten commencing December The lease gave 1, 1951. option ant the term for an additional two renew has in lease also “The tenant years. provided: in its spected accepts property condition.” admitted present the tenant Moreover, *7 to the premises that he the actually inspected prior occupied lease and then his merchandise in and stored premises Stronger still, demised for two years. the the lease the tenant its and extended option exercised Some two more 1955. years November ending 30, for time in notified the Pittsburgh defendant was by 195k had never that it Inspection Bureau of Building (a) the terms to do by defendant was bound applied for, its that permit (b) of its for lease, occupancy the its lease) terms of repairs certain which (under be required tenant was to compelled the make, in October before the issued. permit Thereupon, would be giv the without 1 defendant vacated 954, notice. ing plaintiff any open sur its to petition
Defendant testified, by non-pay- which was entered default had repre- plaintiff’s ment of the (1) agent rent, lease, execution the written sented, prior accommodate “should the floor demised and (2) that, his classrooms ...”, had stored in what we inadequate to this floor was averment, contrary weak testi- plaintiff’s Even meet defendant’s needs. tes- by contradicted had not been specifically mony neither eq- there Avas facts, and refuted timony
69 tbe uitable nor an justify opening legal ground judgment. A. v. 2d 592, 255, Grubb Rockey, he
defendant contended induced to enter into the was he written contract should agreement entitled crop to the wheat to be harvested after date of settlement. Court held this evi dence was inadmissible the consider because vаried set in said ation forth the written agreement (page : “The modern Evidence Rule 597) Parol Pennsylvania Mr. is well stated Justice Stearne Walker ‘This Court said 9: Saricks, 594, 598, in Gianni v. R. Russell & 281 Pa. Inc., Co., or mistake, A. 791: fraud parties, any “Where without writing, have their put engagements deliberately not but best, law declares the to be writing v. Berens, their Martin evidence only, agreement: 142 Pa. 287. All 67 Pa. Irvin v. 459, 463; Irvin, and verbal conversations preliminary negotiations, the sub superseded by in and are agreements merged acci . . . and unless fraud, written contract* sequent constitutes averred, writing dent mistake be terms cannot parties, between evidence: from be added nor subtracted 133; Vito v. Speck, Union Co. *8 Storage ’ ” 209 208.” Birkel, 206, in- alleges which defendant representation The oral under was, written contract it to enter into the duced other numerous v. and Pa., supra, 366 Rockey, Grubb in and super- merged Court, recent decisions contract (complete) subsequent seded be added terms cannot and its between the parties is evidence a case parol such evidence. by parol add to or sub- supersede, to vary, inadmissible clearly fraud, accident unless contract, the written tract from * throughout, Italics ours.
70 or mistake in from the writ omitting representation ten is agreеment averred and is proved. rule es applied if the pecially strictly prior or contem poraneous oral inducing representation or promise is concerns, subject specifi here, dealt cally with the written contract: Bardwell v. The Willis 375 Pa. T. W. Company, 102; 503, Phillips Gas and Oil v. Co. 368 Pa. 84 A. Kline, 516, 2d 301; Grubb v. supra; Walker Rockey, Pa., 360 Pa. 63 A. 2d & v. Russell Saricks, 9; Gianni 281 Pa. Co., 126 A. Inc., 791; Speier Michelson, 303 Pa. 154 A. O’Brien v. 127; O’Brien, 2d Russell v. 309; A. Sickles, 610.
The instant case is ruled not principles established the aforesaid firmly but even more cases, and Bardwell v. directly The Willis specifically by which on its facts is Company, Pa., supra, almost on all fours with instant case. In the Bardwell plaintiffs case the (tenants) averred that the defend- ant’s agents falsely, intentionally fraudulently that met represented (a) the standards required by that plaintiffs, (b) reliance upon misrepresentations, such plaintiffs entered into a five lease. year (page 505) The Court said : “Plaintiffs averred contemplated they engaging in the business of bottling Hires Beer Root and in- representatives formed defendant’s their business with required ‘ample location water facilities several operations’, ‘large drainage facilities for the ‘definite operations’, and a electrical facilities switch- for the operation’ ‘heating board capable facilities of quickly heating required water temper- to minimum atures and said keeping . . warm’. . Aver- ment made, defendant’s however, agents falsely, intentionally fraudulently represented at *9 that the inspected time the being were by plain- met the standards required facilities thereon sueh upon representations in reliance tiffs was entered beginning 1st, 1947, lease five-year May representations Those were representations into.” case, in the instant facts —the representation existing even amount does not “should accommodate”, to wit, of an fact. existing a representation case Bardwell lease Moreover, “ are fa ‘. . . examined provided the tenants and buildings miliar condition with the received good and that the same are thereon, located toas the condi warranty order and condition without for their in thereof the first repair party tion or ” offers of induc rejected use.’ tended Court facts be stronger) existing representations (far ing of the prohibitions Pennsyl fell cause within they Rule. instant Parol Evidence vania Modern 1 of rider attached to Paragraph typewritten case, inspected tenant has prem the lease recites: “The condition.” present accepts property ises and includes weight-bearing This provision certainly is statement equivalent floor, capacity the condition of has made been that no warranty There is, been waived. has made, premises, in a lease of land warranty no implied in Pennsylvania, the purpose are fit for buildings land or the v. Co., Alpha Sign Bed Co. Federal Metal intended: Garson, A. Wood 189; A. 811; Philadelphia, Levin 331. upon which the inducing representation
Since subject “concerns a so relies belatedly the defendant con- in the written dealt with specifically evi- premises, parol the condition wit, tract” *10 72 for this reason is
deuce, inadmissible under all alone, our cases. (in page further said Court Bardtoell case,
506)
contemporaneous
alleged prior
: “Where the
or
representations
agreements
subject
oral
or
concern
specifically
is
in
dealt with
contract,
written
purports
and
contract
written
covers or
cover
parties,
the entire
of the
is
the law now
clearly and well settled
that
absence of fraud,
alleged
representations
accident or
mistake
oral
or
agreements
superseded
merged
are
in or
the subse-
quent
parol
vary,
written
evidence to
сontract,
supersede
modify or
is
written contract
inadmissi-
Phillips
ble
evidence:
Gas and Oil
v.
368
Kline,
Co.
Rockey,
2d
Pa.
Pa.
84 A.
516, 519,
301; Grubb v.
368
2d
79 A.
Walker v.
360 Pa.
592,
255;
63
Saricks,
A. 2d Gianni v. Russell &
Pa.
9;
281
126
Co., Inc.,
Speier
A.
v.
791;
303 Pa.
Michelson,
127;
O’Brien v.
2d
O’Brien,
309;
A.
Russell
“The Parol Evidence Rule has had a checkered ca- Pennsylvania. reer Now that has been well permit evaded wisely it to be not settled we will misrepresen tactics. Fraudulent such undermined modify proved con may a written avoid tations proved they omitted were tract if it is averred (complete) acci fraud, contract from the Truck Co., Motors Kull v. General dent or mistake. Cf. Corp. Sterling Jen A. 562; 311 Pa. 580, 586, Superior nings, . . 291. . Ct. bar additional reasons which
“There are two plain- provides plaintiffs’ (1) recovery: the lease *11 the condi- are familiar with tiffs examined and 'have buildings and located thereon, and tion good condition in order the same are received that repair there- warranty or condition as to the without party use:’;... their intended or for the first agree- inserting in clauses such “What is the use of prove permitted parties thereto is ments if one of and wasn’t testimony examine he didn’t that or condition, or their familiar with the plaintiffs re- they which standards not meet the would understanding, any plaintiffs quire? on relied ... If prior agreements representations made promises, or they or lease, contract of the written the execution incorporating protected themselves should have representations promises they they rely, have omitted upon should now which repudiate they provisions desire to now which nullify.” Furniture Hummel Co., v. also:
See Lefkowitz Furjanick Estate, 122 A. 2d 802; Pa. 384 Pa. v. Frederickson, Adams 100 A. 2d 85; 2d 240. plain- supra, the 384 Pa., Frederickson,
In Adams v. attempted because alia, inter a contract, to rescind tiff defendant misrepresentations made both
relativе to the nature of the profitable business, In past plaintiff’s petition, future. denying this a 35) Court said : “There (page are, course, Evidence few the wall of Parol openings through In the plaintiff. but none of them is available to Rule, order for him to terms of the written specific alter for him to contract binds it is not enough which him, that the terms which appear upon fraud. It must allege he now the contract by design relies ivere omitted from or deception Speier Michelson, Pa., supra, of defense
sued
a
note. The affidavit
on
promissory
of a piece
owners
parties
joint
averred
were
Philadelphiа
subject
of real estate
to borrow
and that defendant was induced
mortgage,
his one-
from his co-owner an amount sufficient
to pay
in suit by
half of the
and to
note
mortgage
give
the note
be payable
parol agreement
the real estate. The real
out of
of the sale of
proceeds
held that
not
sold. The
estate had
been
Court
yet
inadmissible to
or defeat
vary
evidence was
from
and after
Gianni
quoting
written instrument,
*12
said:
O’Brien v. O’Brien, Pa., governs it. The closer to the instant case and even speaking through Mr. now Chief Jus- Justice, Court said: tice, Stern, question presents
. itself:—Have . The therefore complainants right of on their counterclaim? action upon agreement oral As far as it is based for a cer- J. he not, Clarence O’Brien that agree- competing engage tain in a business, time, prior immediately allegedly to the ment made signing agreement it is clear that of dissolution, they any such assertеd obli- cannot avail themselves principle gation part, enunciated Gi- on his for the & 323, 324, anni v. R. Russell Inc., Co., firmly in the A. become too imbedded has 791, 792, recovery permit on law of this Commonwealth principle any agreement. is to the ef- That such any allegation ac- fraud, fect in the absence of that, agree- writing constitutes cident or mistake, parties, terms cannot be and its ment between the evidence’; odded nor from subtracted parties, as were the ones is ‘whether situated test naturally normally include toould contract, they If relate it were made. the one in the other subject-matter arе interrelated that so the same and in the the same time, would be executed at both scope subsidiary contract, same ques- writing. covered taken to be must be There can be the court.’ be determined tion must agree- present the written case but that no doubt *13 comprehensive complete on is and of dissolution ment carefully obviously its It face. and was drawn was in- naturally to tended cover all terms that would be certainly parties in included such a if the contract; agree withdrawing partner had meant was period obligate for a certain not to himself, of time, competitive enter into a business a to that covenant agree- effect in would have been embodied the written precariousness ment itself and not left to the of an understanding. oral because of the Therefore, agreement evidence oral cannot rule, be right made the basis of the of action asserted filed counterclaim which claimants action of assumpsit.” v. Hummel 385 Pa. Furniture Co., Lefkowitz purported complete 122 A. 2d what parties. By
written contract was executed prepare terms undertook to for defendant plans specifications building. for construction of a sought by alleging Defendant to avoid the contract promise agreement plans oral or would be completed approximately within two months there after. The Court held that evidence was in quoting admissible, after several said authorities, 248) (pages : writing
“. . . The instant is evidence of preliminary negotiations all their were superseded merged ‘Any parol agree in and it. subjects obligation ment that on the instrument any contingency, person, condition or whether is time or amount, ineffective, instrument unless unconditional, fraud, accident, mistake through pro means instrument was Speier : Michelson, cured’ 127. can defendant be sustained in “Nor its contention error to enter pleadings. that it was on the *14 The parol evidence rule is not one but evidence, substantive law. O’Brien v. 362 Pa. 72, O’Brien, 309____ 66 A. 2d
“Situated as these parties natu would Avere, they rally include in normally the written contract any promise as to definite time for completion of the plans. This is the test R. (Gianni v. Russell & Co., Inc., Pa. 320, 323, defendant’s 791), allega tions do not meet it. The oral and written agreements relate to the same subject matter and are so interre lated that both would be executed at the same time in the same so that contract, subject the oral agree ment must be taken to have been covered the writ ing. See Gianni R. Russell & Co., Inc., A. 791.” 324, 126
The aforesaid cases establish that clearly where or complete, what to be a purports complete written agreement executed or prior contem- parties, poraneous oral inducing representations or promises or agreements are inadmissible in (in evidence the ab- sence of accident or contra- fraud, mistake) vary, add subtract from or dict, to, written nullify agree- prom- ment— oral (1) representations or if ises or concern a which is subject agreements specifi- dealt with in or cally (2) contract, — as expressed Justice Stern —where aptly by Chief “par- situated were the ones to the as ties, contract, (i.e. include one naturally normally rep- or promise resentation other agreement) (i.e. contract) the written were made”. the ad support
The cases cited majority in this case are dis mission evidence clearly La Course tinguishable. Kiesel, defendants auctioneer to act engaged their auctioneer selling property. their agent advertising property a handbill prepared “ apartments . . also splendid inter alia: stated, ....’” in a handsome income bring which would auc bidders prospective read to handbill was on the premises. sale held at the auction tioneer After those rep at subject was sold the property auction — signed plaintiffs form resentations — clause stating property contained a sale which . . . “l. . *15 restrictions, . all subject existing sold statutes and regu ordinances, zoning regulations, and, learned that the plaintiffs ....’” Thereafter, lations the of the use prohibited prop restrictions zoning the the a and rescinded single residence, than as other erty al these the Court facts, properly Under purchase. the contract.. to rescind plaintiffs lowed the In Lake v. Thompson, the nоt covered representations were the Parol Evidence Rule was written agreement in its obvi opinion; not even discussed Court that decision fails to the ma support ously, therefore, Turn in the instant case. Pennsylvaia jority’s position A. 2d Commission pike Smith, sui demonstrate, generis. a of will reading is, relied upon by none of these cases We repeat, opinion. its support majority firm to admit evi It conviction that my promises or representations agree dence of “oral viz., fact, of an existing ments or statements” inducing to or of the order to add alter flooring, the strength recites, complete or void has inspected that “The tenant inter alia, in its accepts present property condition”, the modern Parol erodes and violates Pennsylvania Rule and will the door to a return open wide Evidence chaos of the confusion and the pre-“Gianni-Russell” era. For these I Order of would reverse the reasons, the Court below. judgment why
There is an reason additional opened. highlights should not be The evidence legally— equitably weakness of defendant’s case— opening and demonstrates the Order leasing was a manifest abuse of discretion. Prior to premises, (plaintiff’s Berger son) Mr. con- A. H. (defendant’s suрerintendent) ducted Mr. R. E. Smith through building. Berger he told testifed that inspection thorough Smith that Smith should make a not it and then decide whether or suitable for needs. Smith he his admits made premises. thorough inspection then Smith plaintiff in a letter to the which he set sent forth put proper repairs premises in condition needed highly significant that It is use. defendant’s weight-bearing Smith’s letter made no mention capacity of the floor. equitably case
Defendant’s is further weakened exercising option destroyed to extend its letter *16 years, after for another two the term of lease approximately eighteen (18) possession had been occupancy, During eighteen de- months months. ample opportunity to for itself had determine fendant capacity weight-bearing and whether of floor only requirements. after met It was its Pittsburgh Bu- from the notice received defendant permit Inspection Building its oc- that a reau of applied for and that it would cupancy had never been repairs defendant which certain to make have —both de- the defendant its lease—that to do was bound capacity weight-bearing floor’s that the termined and vacated inadequate meet its needs to any plaintiff Defendant’s giving notice. without 80 But
actions fаr loader than its even speak words! defendant’s actions did not belie its words words, not suffice to judgment. justify opening on Defendant bases its entire claim to relief equitable de- floor of the representation mised had premises “should accommodate what we had stored in classrooms”. if this testimony his Even not been and re- contradicted specifically an futed defendant’s it does not constitute evidence, averment an fact nor under the authorities existing is it sufficient an opening judgment. justify v. Ray Morrisville Inc. Sun Shopping Center, 112 A. 2d the Court Drug 183, Co., 576, 581, “ ‘A is said: default petition open judgment by addressed to the sound discretion of thе Court below eq and is ruled equitable proceeding essentially uitable and the decision principles; lower Court will be reversed on there has been appeal when a clear or manifest abuse of v. discretion: Downes Hodin & Pa. A. 2d 104 Kornfeld, 495, cases Pa. cited therein’: Gross, McCune 105 A. 2d case present 367.” testimony falls far short of the precise evi clear, convincing dence the conscience of a required move Chancellor relief: Nissenbaum v. grant equitable 110 A. 2d & Bank Farley, 230; Exchange Trust Co., Trustee, Bartley, 833.
I am that there has clear convinced been a or mani- fest abuse of discretion opening I for this additional reason would reverse the Order Court. lower *17 Mr. Justice Musmanno joins opin- dissenting ion.