*1 Opinion Per November 1965: 9, Curiam, Appellant petitioned the court below for a rule why judgment against upon show cause him entered attorney a warrant of contained in a lease should opened. granted appellees why A rule was to show cause judgment opened deposi- should not be after and, interrogatories argument, tions, be- and oral the court discharged ap- thereby giving low rise to rule, peal. petition open judgment appeal eq
A powers disposition uitable petition its court, appeal
will not be disturbed on unless clear abuse discretion shown. Thomasik v. Thomasik, (1964) 413 Pa. A. 2d 511 ; Girard 559, Tr. Corn Sweeney, Exch. Bank v. 413 Pa. 196 A. 203, 2d 310 (1964); Sup., Corp., Univ. B. Inc. v. Shaler H. Pa. 186 A. 2d primary
The court found below that the reason ad- opening predicated upon vanced appellees’ perform alleged failure to some future act require opening even if did not and, true, judgment. Our review the record fails to disclose or error of abuse discretion law and we will not the court the order of disturb below.
Order affirmed.
Mr. Justice Musmanno dissents. Appellant. v.
Herman Stern, *2 1963. Before November 19, Argued Cohen, Jones, March JJ. 17, 1964, Roberts, O’Brien dissenting. Reargument granted J., reversed, Roberts, 1964. May 27, C. J., November Before 1964.
Reargued Bell, Eagen, O’Brien and Rob- Jones, Cohen, Musmanno, JJ. erts, him Brooks, L. Milton Markovitz,
Jerome appellant. Laurence with him White & Wil Cushmore,
C. Jr., appellee. liams,
Warren Morgan, G. & for amicus Morgan Roth, curiae.
Milton P. King, Philip Ster- Sterling, Mandil, ling, Magaziner & for amicus curiae. Semans,
Emanuel Romm, and Barnie F. for Winkelman, amicus curiae.
Opinion by Mr. Justice 1965: O’Brien, October 13, appeal The instant from arises a suit es a real broker tate a commission which he alleges earned the sale through owned property L. by James herein. Stern and Stern, his wife owned the land and located at building 1707 Walnut Street In Philadelphia. ofMay Stern 1954, rented J. John Jr. Late in building Shaw, Shaw 1959, relieved of to be his lease. sought The Shaw lease did until expire August 1960. In not order to a find Sbaw subtenant, engaged appellee. Soon Herman, a subtenant was obtained Herman thereafter, the unexpired term of the Shaw lease. The subtenant also signed premises a new lease for the rental of the for an additional period. prepared three Herman year the sublease from to the the new Shaw new tenant and lease from Stern to the tenant. new
Both of these leases contain in paragraph 37 (B), “In clause: consideration of the following services of Richard B. & in securing Herman Company, Inc., the execution of the above the principal hereby lease, authorizes Richard B. Herman & as bis Company, Inc., agents to collect there the rent due or to become due under the continuance of or for during any the same, renewal or retain renewals and to deduct and thereof, percent five of the amount collected each (5%) month, and for purpose possession to retain time during period. said ... the event at any that, while Lessee or or assignee affiliate successor to or in possession premises Lessee is of the demised . . ., premises Principal . . . shall sold Lessee, B. Herman & agrees Inc., Richard pay Company, . price commission the sale . . regardless 5% himself Principal whether shall have obligated Tbe on sale to else. commission said anyone as provisions binding of this clause shall be Principal. . . . au foregoing signees, [etc.] coupled be considered one with an interest shall thority & . B. Herman Inc. . .” Company, Richard Herman signed by The leases were *4 appeared At the bottom of the lease the sentence: tenant. of Richard B. Herman & Com principal he “T examined the above lease and having agree Inc., pany, them and approves ratifies and agrees hereby ments, This particulars.” all was followed same L. and seal. of James Stern signature Roslyn Alex Sailor, Sailor October, 1962, purchased property tenant from Stern, wife, Roslyn trading being Roslyn Bou- as Sailor Sailor, sought tique. appellee, a commis- The then Herman, alleging pay, refused on the sale. Stern sion through effort others consummated the sale was plaintiff through of Herman. The the effort complaint assumpsit filed defendant a and the filed plaintiff containing then matter. The new an answer parties reply moved then both filed a new matter, pleadings.1 judgment on the for complaint alleges that: “3. On or about Octo- agent for defendant entered as ber 23, 1959, Roslyn Agreement certain Sailor, into a Lease copy made correct of which is attached hereto, true and A. Defendant rati- and marked Exhibit hereof, approved writing 23, on October fied and the same appears therefrom. 1959, Agreement in thereof 37B
“4. Said Lease Section stipulations agreements certain contains (the Herman name ‘Richard B. and defendant signature Company, Inc.’ in Section & changed by being B. 38 to read ‘Richard Her- Section including Company’) that if at man & possession any be in time while Lessee should having possession premises, remained in un- demised interruptedly the commencement of the term since or any thereof or extension or under renewal other premises arrangement, should be sold judgment pleadings we Rave motions Because on the from carefully pleadings may parties, delineate we must what both we plaintiff’s judgment we consider motion for When consider. only may complaint pleadings, consider we and the answer Corp. containing Dittig, & Luria Steel T. matter. v. new 414 Pa. However, when 2d 465 we A. consider the de pleadings, motion we must consider fendant’s containing matter, complaint, reply the answer new and the matter. new *5 principal the would Lessee, (meaning defendant) pay plaintiff a the price, commission sale 5% ob- regardless of whether or not defendant have should himself a ligated commission on said sale pay anyone else.” denied
Defendant, his answer and new matter, on obligation to a any plaintiff commission to the plaintiff the of the as the property sale had nothing do the and for the further reason (a) with sale, and the acted as plaintiff John J. Shaw, Jr., error Shaw; through as an accommodation to (b) and from mistake was not stricken paragraph (B) arrangement the form before no printed being signed as or plaintiff was made the discussion with in the respect commissions any payment any through sale; (c) premises event of were sold any all than the plaintiff; (d) the effort of a other person was under the lease plaintiff interest and authority in advance plaintiff defendant paying cancelled by rent of the commission the entire amount he which was entitled. for the judgment
The court entered lower and appealed Defendant and the defendant. against and that judgment be reversed asked that the defendant favor of the be granted on the pleadings argues (1) plaintiff. against for the was made that no agreement plaintiff admits in the event a sale, commission payment even such clause though liable is not defendant to defend- plaintiffs reply lease; (2) printed respon- indefinite and not vague, new matter ant’s Rules of Civil Procedure, Pennsylvania and under sive, (3) under defendant; pleaded facts admits the broker was not entitled lease, terms express did premises which the sale to commissions right and that (a) any his efforts, from not result under had to receive have may premises commission the event of the sale of the was ended when the defendant, accordance with plaintiff’s terms of authority cancelled lease, possession interest and retook of the lease three almost years prior premises, (b) to the sale of the section *6 (B) provide of the lease does not for a commission paid premises to in be event of the of sale where plaintiff procuring was not the cause of the sale.
Appellant appellee contends that the has “admitted provision dealing that the written in the lease with payment of commission in the event of a of sale premises part understanding was never or arrangement plaintiff between the and defendant”.2 defendant-appel- plaintiff-appellee, reply The in his to lant’s new made an matter averment that the matter, contained therein was irrelevant. in de- The averment being: fendant’s new matter “8. In October of 1959 the premises question, of then tenant in John J. Shaw, vacating premises was desirous Jr., under his August had to lease which still to run. On 31, 1960, information and defendant belief, is informed John said engaged Richard B. J. as to Shaw, Jr., Herman, property. Roslyn trading Roslyn rent the as Sailor, Boutique was obtained or Sailor Shaw Herman as plaintiff and defendant authorized to exe- a sublessee to that effect. On a lease October cute 16, 1959, plaintiff executed behalf of was John J. lease Roslyn whereby trading Roslyn as Sailor Sailor, Shaw, Boutique made sublessee for was the remainder of the unexpired term of Shaw’s lease and which contained a premises provision printed that should the be sold plaintiff principal would a com- lessee percent. provision (5%) Said five as mission premises payment should of commission sold was plaintiff principal and his into between Shaw entered brief, page Appellant’s 6. and was not or agreement any understanding and defendant.” And, further avers new matter: “10. . error Through . . and mistake the said form con- printed tained a clause3 which was not to the ar- applicable made have rangement parties between the and should been aver- deleted before There a similar was signing.” ment . defendant’s “4. . error Through answer: .
mistake, paragraph3 the said was not stricken from printed form no arrangement before such signing or discussion was made with respect event payment any commission . . .” any sale. averments defendant’s answer foregoing meet pleading new matter were not sufficient plain- standards of Rules of Civil and the Procedure,4 tiff-appellee therefore, required answer, *7 not he could deemed to have admitted what was not be pleaded. properly error mis-
The that and through contends not of was stricken portion (B) take the paragraph form. out whose printed point from the He does not by not done. The bald error or mistake this was by whose falls of the re- of and mistake far short assertion error reformation of the contract. for quirement necessary averment proper is there pleading any No in the place to evidence to show a court allow permit which would of should for commission provision payment that the the proper 1019(b). R. C. P. Without Pa. be omitted. not he introduced could evidence parol averment, compensation of payment provision that the show be- agreement understanding part any not of was the lease agree- the On contrary, the parties. tween agreement. 37(B) Paragraph of lease 1019(b) of fraud or shall : “Averments mistake R. P. Pa. C. Malice, intent, knowledge, particularity. other averred may generally.” be averred of mind conditions ment shows careful draftsmanship. consideration and A portion of not paragraph 37 was stricken out as (A) to the applicable particular situation.5 Appellant provision further contends that under the provides that for paragraph (B) principal the the reserving right to cancel the agent’s authority possession principal retake of the lease whereby amount of rental for the unex- pays commission pired period of the invocation of the lease, this compliance lease agreement extinguished therewith for of provision payment commission of a sale of the property. event There is no no- under conceivable would, lease this of plain warrant construction. The language tion, for in the provision payment commission its contrary unequivocal of sale is event due terms that commission is the agent, appellee, appellant. provision The terms of principal, The un- paragraph unequivocal. are appellant, had the right payment der the make lease, in full all claims rental commission due appellee was appellee compelled accept the lease. The under in full of all commissions due on rentals when payment invoked appellant. pay- was provision of commuted rental commission to the amount ment entitled is not consideration appellee the other claim commission in the the release property, when the particularly the sale event provide for it to be such a does release. the appellee *8 maintains that is not entitled
Appellant of the of premises event sale the the to commission (B) was an error or mistake as of 37 Stern inclusion the If in nature. The unilateral law is clear that was alleges, mistake the Contracts, Restatement, void a not contract. will mistake a unilateral Blocksom, Superior v.Co. Pa. Phila. Ct. 02; Marmon §5 A. 510 appellee procuring where the was not the cause of sale. pro- specifically unequivocally The lease and “Principal [appellant] agrees pay vides that: to to Company, Richard B. & of Herman a commission Inc., price, any the sale other without deduction 5% paid payments Company, or due & to Richard B. Herman Principal regardless of or not Inc., whether hereunder, obligated on shall have to himself a commission anyone many on said sale to There else.” are cases subject the real estate and when bro- commissions, are to a kers entitled and what the re- commission, quirements to It are entitle a broker commissions. purpose long line serve no for us to the would review only necessary point the of cases. It out is us specific language the the lease show that the broker is to his commis- instant case entitled procuring sale he the cause of the sion whether encompassed persons or not when that sale was made agreement. plain provisions lan- The the within guage ignored. agreement cannot be of the reargu supplemental Appellant says in brief on “It is case that: submitted that ment printed lease between the landlord clauses impose any obligation land do the tenant agreed payment a commis had lord unless he pro property. expressly It is of the for the sale sion lease sets the lease Section vided agreements, promises, conditions, . . '. all forth lessor understandings and lessee . . .’. No between that the lease constitutes statement is there where lessor and the broker. It agreement Appellee hang contention apparent print page fine in the seven upon thread ing appears the words Tease agreement wherein lease approval therein refers contained agreements’. agreement made between the landlord only many . clauses. . . Her contains tenant *9 prop employed only the lease—not to sell man was erty legal and in this case . . . the real and issue agree any made the Stern, issue is whether defendant, pur pay tenant in ment to a commission the event property. this statement chased the The fact that a print in in lease to effect forth the fine is set noof otherwise made is no reference or discussion was agreement legal validity admittedly when no such (Emphasis original) made.” signed
Appellee party to the he was not a contract, provisions appellant, it and the as appellant, agreement are between landlord, Roslyn trading Roslyn Sailor Sailor, impose any obligation tenant, Boutique, land- on the and do agreed appellant, unless he, landlord, lord, payment property of a commission on the sale persons enumerated of to those in the event a sale agreement, paragraph (B). of In section 35 the lease agreements, provided: promises, con- “. . . all the it is understandings between the lessor ditions any no reference is made to . . lessee .”, appellee. appellant, and the broker, the lessor, pro- (B) paragraph it of the lease B. of the services of Richard “In consideration vided: securing Company, of the execution & Inc., Herman principal hereby Richard authorizes above lease, agents Company, as his to collect & Inc., Herman B. during due thereunder con- to become due or rent any or for renewal or renewals the same, of tinuance per (5%) and retain deduct five cent and to thereof, purpose each and for this month, collected the amount period. during possession the lease said . . to retain any time while at Lessee or affili- that, In the event assignee possession or Lessee is successor ate premises premises . . shall ., be sold demised Principal agrees pay to Richard .... Lessee, Company, a commission Inc., & Herman B. 5% price sale . . . Princi- of whether or not regardless pal shall have obligated himself to commission said sale to else. clause anyone provisions shall be binding Principal. ... of the assignees, *10 The foregoing coupled shall be considered one authority an with in Company, interest Richard B. Herman & . Inc. . .” The in paragraph the language foregoing 37 (B) ap- would not impose liability lessor, pellant without more than the in the manner which lease agreement appellee was the executed, is, as for the agent appellant Sailor, and the lessee, Roslyn as was trading Roslyn Boutique. appellee Sailor The not a right to this in his party agreement lease own imposed upon appel- therefore no the liability lant to the appellee.
Appellee pro- his action on the grounded foregoing provi- visions and the paragraph following (B), at agreement provides: sion the end of the lease “The B. principal Inc., of Richard Herman & Company, examined the lease and here- having above agreements, approves of the same by agrees them ratifies in all L. particulars. (Seal) James Stern [Signed] Appellant Pa. Oct. 1959”. contends Philadelphia, lease ratification and to the approval refers only made between the landlord and the agreement tenant, clauses. many which contains recover a commission for sale appellee the the
May from the lessee in the premises instant situation? in himself clear and
Appellant obligates unambigu- for a recited consideration from bro- ous language, specific commissions. That this seal, under ker, is contained the lease agree- agreement particular appellant and lessor, lessee, Sailor, between ment objectionable. nor legally pres- Its unusual neither can be only create a binding document in the ence appellant and principal, ap- agent, commissions. those pellee, signed who for agent, explained. rational!y its existence cannot be Otherwise, (cid:127)There for prohibiting is no or legal logical reason inclusion It manner promise. practical of such ais efficient business matter an handling everyday necessity legally avoiding effective manner, other The matter is separate simple contracts.
lessor, prepared appellant, adopts with contract lessee as his own un- agent. contract adoption clear, ambiguous purpose under language, seal, situa- which it was cannot be denied. This executed, contract problem tion is a fundamental ordinary party law. are which a There instances many instru- recover on the writing may signatory under or a grantee of a check ment, payee note, e.g., maker grantor a deed. In these instances, only *11 on appellant’s the action is signs writing. the Here, por- as that promise pay to commissions determined by appellant between tion of the lease agreement the seal by appellant. under He signed lessee and signature promise and his that party to be charged, is sufficient. the contains two
The agreements, lease in the appellant suggests approval ratification and that between lessee the “agreements”, use the word his between the through agent, and lessor, signa- came into agent, being upon his lessor and When the appellant. lease lessor, agree- by ture the appellant the his approval, tendered ment was of two (1) by in offers: an offer effect, it consisted, in consideration of services accept, appellee the appellant should (if approve the it), procuring in appellant of the part the com- the pay promise in (B) forth Section lease agree- set mission the to promise offer lessee the pay- an : (2) ment for the appellant’s in return promise to rent ment provide the lessee with second building.
these offers offer of a bilateral contract, first an offer of a unilateral to the analogous contract, appellee’s saying appellant: “If will promise you me the commission forth in set section 37 (B), this lease is yours”. ap- When ratified and proved the he accepted not the lessee’s document, only but also offer, appellee’s offer.
Appellant maintains em appellee was ployed lease the and not to property proper sell the ty. This contention is not borne out clear plain, language the document. Appellant contends also provision for the of a payment commission on the sale of the property print fine in the document and, there had been no discus addition, reference or sion of provision for the payment of a commission on the sale. An examination of the document reveals exception that with the document had been on a typed typewriter and a evident rider, prepared on a all of ly pro the document typewriter, of the same size and style visions were and the type, over the end of provision appears directly the docu containing signatures.6 ment Whether an oral dis concerning had commission in cussion was place parties took event a sale is of no of the written face clear and moment there having been no terms, allegation of unambiguous fraud. affirmed.
Judgment *12 6 distinguished Corporation from thus Cutler case is This v. 1, (1953), Latshaw, A. 2d 234 Pa. 97 where a 374 confession of print, in a judgment hidden mass of small than clause smaller agreement and hidden on the reverse sheet of the the bulk pages.
286 Concurring Opinion Roberts: Mr. Justice appellee join fully holding has
I that the Court’s right adequately dis- established his contractual puted to add I however, commission. feel constrained, a few brief observations. principal confronting Court wheth- issue this appellant’s denying motion erred
er court below judgment pleadings time at the same while compelled, appellee’s granting motion. We are similar exclusively ourselves to concern therefore, appel- specifically, pleadings,1 more with whether and, purposes admitting of motion for the his while lee, appellant’s allegations untruth and the truth of all properly allegations been denied,2 have own right his claim. to enforcement of established has urges agreeing principle, that the dissent While on court below this Court reverse the appellant’s irrespective appellee, an ground requisite plead “material facts” failed to has swer, it contract. Since of an enforceable to the averment appellee’s right majority not contended beneficiary predicated party recovery may a third necessary ry,3 under the view there it is theo appellee that he was have averred taken 1 on, 136, 138, 2d 415 Pa. 202 A. v. Endicott-Johns Nederostek Superior 440, Metzner, Emery ; Pa. Ct. 445. 72, (1964) v. 191 73 Logan, Superior Bogojavlensky 627, (1959) ; v. 181 Pa. 2d 630 A. 156 (1956) 412, ; 320, 2 A Anderson. 312, 416-17 A. 2d 124 C t. (Supp. 1964); 1 Goodrich-Amram §1034.21 Practice Civil Penna. (1960). 1034(b)-1 1034(a)-3, §§1034(a)-1, Endicott-Johnson, 136, 138, 2 A. 2d Pa. 202 415 v. Nederostek A, Co., 325, 331, 414 Pa. 200 ; Brown-Borhek (1964) v. 72, Smith 73 Co., 567, Coal 387 Pa. v. Denise o. (1964); C 398, Coal 400 2d Necho Dist., Cary Merion (1957); School 771, v. Lower 772 568, A. 2d (1949) ; 762, 1 Goodrich-Amram 312, 2d A. Pa. §1034(b)-1 opinion reach need to as I no no see point venture I On issue. *13 to party tbe written contract is upon which his claim predicated. And it this, is has urged he dissent, failed to do in that it is mani claimed that sole his festation of assent to the is writing signature his his representative capacity. appellee that Concluding has otherwise averred the manner which as his sent —in his individual capacity it manifested, —was is asserted that appellee has failed to aver that he was a to party the contract and plead claim. properly
The record supports no such conclusion. I believe, as does the that appellee majority, has adequately averred the manner of his assent, and, therefore, he is a party upon contract which he claims.
The contract
appellee
which
has averred is a uni
lateral contract. That much appears evident from the
In
pleadings.4
such a
contract,
very
per
act
complaint, appellee
acting
In his
averred that while
in a
representative capacity,
appellant,
for
he entered into
Sailor,
agreement
lease
with one
which lease
rati
by appellant.
approved writing
alleged
fied and
He further
contained,
provision
paragraph
in a
the lease
numbered
37(B),
agreements
appellee
in his
certain
agree
Paragraph 37(B)
capacity.
of the written lease
individual
complaint
thus,
ment,
appellee
which,
annexed to his
pleadings,
(g)-2
§1019
see Goodrieh-Amram
became
of his
[appel
provides:
(1960),
of .
.
“In consideration
services
.
[appellant]
lee)
securing
above
. . .
execution
lease
[appellee]
collect the rent due . . . thereunder
. . .
authorizes
per
(5%)
amount
five
cent
and retain
deduct
. . . and to
premises
that ...
shall
In the event
....
month
each
collected
[ap
agrees
pay
[appellant]
to . . .
. .
.
to the Lessee
be sold
price
. . .”
the sale
.
pellee]
a commission
5%
appellee’s incorporation of
practical
my view,
effect
paragraph 37(B),
particularly
more
agreement, and
lease
promise
appellant’s
in consideration
averment
commissions, appellee
execu-
secured the
provided for
therein
satisfactory
appellant.
terms
agreement under
aof
tion
properly
characterized as
more
be
should
contract
Whether
Contracts,
contract,
Restatement,
see
unilateral
reverse
so-called
(3d
1957),
of little
Williston,
§71
ed.
Contracts
(1932);
§57
the offeror
that which
been
forming
requested by
has
sought
is both the
promise
consideration
for the con
enforced and the
of the offer
acceptance
tract.
comment
Restatement,
§§52,
a,
Contracts,
*14
a
ed.
;
comment
1
(3d
(1932) Williston, Contracts, §65
v.
Kan.
; see
York
153
1957)
New
Ins.
Quilty
Co.,
Life
136
It if appellee in the instant that then, case, follows, performance request- has averred the of adequately ed of a tenant under terms satisfac- securing act, he he has averred that properly then tory appellant, he party upon is a to the written contract which Cf. claims. Restatement, Contracts, (1932). §12 is No examination searching appellee’s pleadings of required perform- to discern the averment of necessary execution appellee alleges the ance. his complaint, approved appel- of ratified and by a lease was which not disputed. a matter which is The conclusion lant, appellee drawn to is that necessarily has, one is performance averred of through allegation, by necessary implica- requested by and, act to the assent written contract. tion, conceptually profitable view over- it more I find moment. preliminary promisee a unilateral contract as made tures pressed in that I am ac- negotiations than an offer hard rather promise may cept not enforceable as a be what notion that But even a reverse fairly an “offer.” viewed as characterized incorporated contract, unaffected. lease the result unilateral appellee fairly averment that offered viewed as may then be satisfactory lease considera- execution secure appellee accepted offer and that commissions certain tion agreement. ratification of his reason
289 It remains be determined whether, light appellant’s appellee entitled was answer, on the pleadings.
Appellant inter the sales (1) contends, alia, commission was not of any understanding pro- between the (2) parties, respect vision with commission disputed from deleted the executed reason agreement by mistake.5 allegation
As has majority correctly stated, fails to conform alle mistake to the rule that such pleaded C. P. gations Pa. R. particularity. Pa. v. Furniture 1019(b); Hummel Co., Lefkowitz A. 2d 244, ; Goodrich-Amram 802, (1956) Practice (b)-1 (1960); Pennsylvania Standard §1019 appellant’s such Lacking particularity, §74 unsupported is mere conclusion allegation legal *15 as be Hummel such v. may disregarded. Lefkowitz v. Mc Co., Furniture see Architectural Tile Co. supra; ; 311 Pa. 166 Atl. 4 Standard (1933) 913 Sorley, 299, It remains Practice Pennsylvania only (1955). §125 appellant’s whether denial the sales determine par was a of the of the understanding commission appellee relief by ties is a barrier to the granted court below. disputes neither
Appellant authenticity The lease contains agreement lease nor its execution. which provision upon uncertain terms the clear and of these appellee recovery. light facts, seeks be only averment can reduced appellant’s crux of unenforce is legally the contention reason its inclusion was of mistake. by able or bar judg is sufficient however, averment, Neither The latter insuf allegation is pleadings. on the ment stated above. former aver the reasons ficient summarily [5] Appellant properly raises a disposed number of other contentions majority. which were 290 obviously
ment is no less a has conclusion law and operative pleaded appellee req no force once facts has e.g., uisite enforcement of a contract. Smith See, v. 414 Pa. A. 400 Brown-Borhek, 2d 325, 330, 398, (1964); Bednarowicz v. 387-88, 400 Pa. Vetrone, 385, (1960); Philadelphia, 162 A. 2d Robinson v. 687, Kings (1960); 400 Pa. 161 A. 2d London v. 80, 82, 1, (1951); ley, 368 Pa. 81 A. Archit 2d 109, 111, 870, McSorley, ectural Tile Co. v. Atl. 913 311 Pa. 299, (1933); Pennsylvania (1955). §125 4 Standard Practice
Appellant, appellee, no than an obli- less is under plead gation to established, material which if facts, appel- constitute a barrier to would the enforcement having appellant en- Not lee’s claim. done so, phantom Having titled opportunity the trial issues. had having failed to raise an issue for trial and complain may grant- do not now so, pleadings. appellee’s judgment ing motion for Dissenting Opinion Mr. Cohen : Justice We note at the outset that our determination comply this matter must with the rule that a pleadings granted only can are cases that free and clear from doubt. Levin v. Blue Mountain Dairy, 407 Pa. 180 A. Inc., 2d 908 alleged plaintiff,
Herman, “as that, he entered into a defendant,” Stern, certain Roslyn copy Sailor, tenant, complaint; he attached that “defendant approved writing;” ratified and the same that “Sec- *16 stipulations contain [ed] thereof certain tion 37B and plaintiff agreements between includ- defendant,” purchased “agreement” ing if that the tenant the pay plaintiff property defendant would the 5% purchased price; property; tenant that the the sales plaintiff pay that demanded defendant him that 5% plaintiff price that but refused. of the sales That part of section 37(B) which plaintiff up- relies on as forming the so-called “agreement” plain- between tiff and defendant in its is, print- small entirety, type ed clause appearing middle the last page five page document prepared plaintiff. top At of the first page type, bold document, large, appear the words “Lease Agreement.” one Section the document is captioned the word margin by “Parties.” It states that it is an “between agreement Richard B. Herman & Inc. for James Agent Company, L. Stern of the City Philadelphia, Pennsylvania, hereinafter called of the one part Roslyn ‘Lessor/ Sailor . . . of . . . hereinafter called Philadelphia, of the other ‘Lessee’, part.” The document signed and sealed on Her- page five as follows: B. “Richard man & Company, Agent Richard Herman” and Inc., By Sailor.” “Roslyn Then prin- follows the clause: “The cipal of Richard B. Herman having & Company, Inc., examined the above agrees lease and agreements, hereby to them and approves ratifies and in all the same particulars.” Beneath appears this clause the sealed signature of James L. Stern.
In his answer admitted inter defendant, alia, signing the lease but matter approving new inter averred, clause “was not alia, 5% of any understanding agreement plaintiff between and that “defendant defendant,” agreed with plaintiff him real com- pay only regular estate mission for and no leasing was made to additional amount in the event of a sale.” Plain- former tiff refused it reply averment, deeming and denied the latter averment irrelevant, stating “the and the defendant 37B.” Plaintiff set forth Section further re- “lease . . . contains the contract between plied upon and the suit defendant, Both moved for parties brought.” motion plaintiff’s was granted. pleadings; *17 must as we onr to tlie analysis pleadings, Confining such, plain to enter judgment a it was error case, on which material facts he has not “the tiff; alleged 1019(a); R. C. P. ... is based.” Pa. cause action §§1019(a) 1019(a)(6). 3 Goodrich-Amram, (2), even suggested for a of action which is basis cause only that defendant complaint is allegations by a breach of a written contract has committed attached to Mm contract is which defendant no allegations There are complaint. absolutely quantum based on alternative causes support would of reli estoppel (no allegation or promissory meruit, bi or oral party beneficiary contract,1 or third ance), uni offer for a or oral defendant by contract, lateral perform plaintiff accepted by contract which lateral Even, allege with it fit is doubtful he would if he did. so party beneficiary. prevailing generally This view of a third in the majority. by apparently conceded much is gave promisee party con- who not a and who no “A third is by right made reason of a contract an enforceable has sideration promisee by (1) of some or if he a creditor of the two others is performance by promi- person for a the contract calls other per- (2) promised obligation; or if the sor satisfaction pecuniary is him and the contract benefit to will be formance promisor give such expressed reason to know that as to so motivating promisee contemplated by one of the benefit is may party making included third the contract. A causes of his once, provisions be. One who at but need not of these within both right, per- though them included within neither of has no even incidentally Contracts, benefit him.” 4 §776 formance will Corbin (1951). requires analysis It no extensive to ascertain that Herman is party beneficiary obliga- third of the Stern-Sailor lease. The purported directly 37(B) to be created tion section would run appellant appellee. obliga- Mrs. from Sailor is involved in only purchase property the extent that tion her of the leased prerequisite generation obligation made the of Stern’s compensation. intention, expressed There is no additional either implied give any the benefit flow- consideration Restatement, ing Contracts, to Mrs. Sailor. See from §133 or oral offer
anee, which defendant ac cepted writing (no allegation oral communi cation), implied allega (no or contract from conduct regarding promise conduct), (no allega tion or sealed delivery).2 Confirming tion of factual limited *18 ground plaintiff complaint, says in brief: his upon in “Plaintiff fact for sued a written payment of a commission in the sale. event prior There nowas need to aver that there had been resulting agreement. oral in Nor discussion the written any deny there was need to the averment of defendant prior in that fact there had been no oral discussion.” plain beyond dispute plaintiff it is re- is Thus, lying solely writing on the fact that the has which he incorporated pleadings into his and defendant which signing has admitted in and of itself— demonstrates allegation him without other contract between —a writing If defendant. were a contract the case from there- would be free and clear doubt and would, plaintiff; judgment pleadings for warrant fore, upon writing equally it true that if the is nevertheless, plaintiff relies is in and of a contract which not, itself, plaintiff then defendant between defendant, plaintiff entitled to on rather than the is pleadings. parties least two in a contract. must be at
“There (1932).3 §15 “The re- .” Restatement, Contracts, . . 2 101, (1932). Contracts, §§95, Restatement, upon maintain an con no one could action law “At common party. not a This rule is well established which be tract recognized country, federal both the state and and is in this (1909). 7, 10, Scott, 224 Atl. Pa. v. Howes courts.” century ago by Judge than half a more statement Mestiíf.zat This qualification one have must expresses the foremost still only parties rights. general aAs rule contractual assert order acquire strangers may to a contract it and enforce contract to a (Jaeger ed. on Contracts §347 Williston rights thereunder. no Contracts, in n. su As noted §124 1. ; 1959) 1 Corbin see exception party third to this rule for thereat text pra, and applicable here. is beneficiaries informal of an for the formation
quirements law each of A and a promisor promisee contract are: (a) in the pro- to act as such whom has legal capacity A assent by manifestation of posed contract; (b) form the contract to the terms parties thereof, who promise. promisor to the consideration for his by every it . A . . .” Id. Now (c) . . sufficient consideration. §19. incorporated by plain aspect one the writing requirements above complaint his meets the But for the existence of contract. imposed lawby it a contract aspect Roslyn on the one defendant-landlord, part, part. plaintiff signing on the other Sailor, tenant, has manifested assent as agent defendant, and the ten- terms of the lease behalf defendant, on her own her has done the same ant, by signature, his has manifested behalf. addition, defendant, behalf to the terms of the lease negotiated assent *19 the tenant. with plaintiff by contract,
Plaintiff asserts that within written this him tenant on be- negotiated executed with the by half of the there is another written con- defendant, upon one which he is suing. tract —the Allegedly, is But section while 37(B). contract section 37(B), it a a and consideration, it states promisor, promisee, that parties. not have two There is no indication does not re- a thus there is party it, is plaintiff of parties “manifestation assent who by quired form the terms thereof, by every promisor the contract his promise.” Id. Even if the to the consideration for beneath the ratification signature defendant’s experience for the ordinary is only (which clause statute and to re- satisfying frauds, purpose personal can taken any liability), be agent lieve of assent manifestation the brokerage defendant’s as in section there no clause is simi- 37(B), commissions on the Plain- writing plaintiff. by manifestation lar tiff lias signed the writing only defendant; surely cannot satisfy requirement of a mani- festation of assent to the terms of compensation a agreement wherein plaintiff and defendant are parties on their own parts. In section short, 37(B) and de- fendant’s signature a at signed prom- constitutes, most, ise reciting consideration. But, under the law that alone cannot constitute a contract between defendant and plaintiff. Plaintiff has failed to how he is allege a party promise it was showing —either an offer which he accepted or an acceptance of offer made him.
The majority’s to a suit analogy on a deed or note signed only by one is party erroneous. order make the signed writing contractual there obligation, must be a delivery the requisite intent. Re- See In the statement, Contracts, §§95, complaint there is no allegation or facts delivery from which a delivery may inferred. By supplying missing allegations order to sustain judgment pleadings deprived has majority the defend- ant the right such deny supplied allegations —which denial would defeat the plead- entry ings.4
This analysis requirements of formation of a contract not a mere academic for it is exercise, defendant’s contention that section form 37(B) did not contract between defend- any it free and clear from Perhaps ant. doubt that it is but promise written it is also free and clear signed, it is a contract between from doubt *20 be signature Defendant’s may strong and defendant. it of such a contract evidence plaintiff that but sealed, other seal or instrument under not “A contract does party executing operative until the it such does some become immediately operative. indicating it to be that he intends act overt ‘delivery.’” Corbin, (1963). 1A Contracts §244 is called This act must prove alleging and the contract —either allege by acceptance and that proving promise the was a written writ- plaintiff some form offer or that it a by was offer for a ac- plaintiff ten unilateral contract which and a cepted or that it was written by performance, But to promise plaintiff. sealed which was delivered and pleadings here we are a reviewing in find allegations. one vain to the required searches alleged That contract plaintiff has Watters, Smith v. supported him and by defendant the Ohio N.E. There App. re of Frauds, whether Ohio Statute cpiestion was in contracts to was satis brokerage quiring writing, plaintiff-broker writing by fied. The adduced defend aspect a that case one contract between was an ex case one for that Dales ant-principal “in that owned them. properties change Also, there . . . that provision contract . . . awas [defendant- - a was commission principal] pay was The court said: “The contract which [broker].” not a contract defendant-[principal] signed by However, but plaintiff-[broker] with Dales.” a memorandum was considered sufficient writing Ohio Statute of Frauds. under the v. Smith note the broker It is how instructive a with the contract defendant. Watters proved . “The oral evidence discloses . . the court: opinion fi- . . with . plaintiff negotiated Dales, . . . that a exchange contract lawyer prepare had nally parcels prop- the five property Dales took and then said contract defendant erty her fact that called attention defendant contract that defendant said provided it was com- stipulated estate real should that said contract defendant, knowing mission; signed the with the provision, contract, contained plaintiff would present said understanding the defendant said Dales signed by so contract
29? procure signature his which thereto, plaintiff did. . . .” It is clear un- the Smith case, proved like the instant contractual the broker a action, arrangement principal by writing outside the his with proving exchanges conduct and from which the verbal of a inte- elements contract could and the be inferred, gration found to be a memorandum. supplemental plaintiff reargument
In his brief on pleadings attempts supply allegations missing in his by arguing acceptance about an offer and can how cir- inferred from a tender of document and other sign- surrounding and conduct defendant’s cumstances reargument ing writing. on is But a brief empha- pleading. Again, it cannot be a substitute for a judg- strongly a too that we are confronted with sized pleadings; pleadings rests ment on the his signed solely allegation of existence of a constituting writing a contract between allegations regarding cir- no There are defendant. surrounding signing of the or conduct cumstances majority’s Accordingly, writing. reliance on such misplaced; unalleged time at the same is circumstances allegations insufficient. actual are that the it indicates pleadings, inadequacy of his In addition tendering plaintiff’s suggestion in that the his brief principal writing an offer to contract to his accepted sign defendant regarding which fees, legal validity. writing, It needs dubious ing support authority that an rule no citation duty loyalty principal must agent his owes good faith. It also needs no citation him deal with agent’s right support engage in' authority to principal bargaining his on the mat length arm’s agent compensation. But an cannot wear his ter agent rightly argue An cannot once. at hats both signature principal for his a docu handing purports to be a executed face lease, its ment principal, he is at him the same offering length time re to enter into an contract arm’s garding handing argues his fee. Plaintiff such principal plain “analogous document to his to the promise saying you ‘If tiff’s defendant: will (B), me the commissions set forth in section 37 *22 ” yours.’ lease is It act of is obvious the mere handing principal very dif such a document to the expressly calling unequivocally ferent from principal’s bar attention to the fact that the broker is Smith, gaining An about fees as was done in the case. agent’s require duty loyalty good faith ivould merely him to do than in main more insert his offer body of a lease which he obtained has quite signed principal.5 agent might as his It principal respect prom reasonable to bind the with in failed ises made to the tenant a lease he has which he to read. But it is not at all to hold that reasonable explicit reasonably should understood have without alleged, which is not here that a document disclosure, such as that involved the instant case was also regarding Requiring agents by agent offer fees. his compensation bargain length at for their arm’s performance distinguishable of their manner from the fiduciary not in accord duties is burdensome and is agency principles. with sound irrespective proposi-
But the soundness of the plaintiff’s plain re- tions advanced the allege fact brief complaint mains that his does facts proven de- if a contract between him and would show allegation complaint There is no fendant. plaintiff promise made to the the defendant. allegation delivery no of the instrument There is operative. adequacy make it Since the so as to upon depends entirely complaint such a existence of granted judgment not have been he should contract 5 complaint Paragraph three of the reads: . . into a certain Lease. . ." entered defendant
299 pleadings. The case should be remanded leave to amend; and in default of amendment, judgment be rendered for defendant.
I dissent.
Mr. Justice Jones
joins
this dissenting opinion.
Dissenting
Opinion
Eagen:
Me. Justice
plaintiffs
As I read the record in
cause
this case,
upon
of action is based
the existence
uni
of a reverse
lateral
Pennsylvania authority
contract. While no
has
recognized
validity
thus far
of such a
contract,
theory
ignored
juris
has been
in at least two other
(see,
App.
dictions
Warner and Co. v.
33 Ohio
Brua,
(1929),
Assuming arguendo that such a contract should be recognized question Pennsylvania, in still remains: agreement require- satisfy Does the lease involved its I ments. conclude that it does not.
Section 57 of the Restatement of states Contracts type complete that a contract of this is not until the (the defendant) promise requested. offeree makes the requires acceptance prom further Section 58 that the or unequivocal. something ise be The mere fact is into a lease in inserted does not itself con acceptance. Corp. Cutler v. See, stitute Latshaw, acceptance A. 2d 234 374 Pa. For the present binding present in the case, to be there must be acceptance of the demand for a definite additional unequivocal phrased in terms. On this commissions fatally point, defective. Nowhere agreements apparently considered similar courts 1 Both they because effect lacked present without consideration on one as they at the time were executed. the broker therein does the defendant accept plain unequivocally tiffs of prom unilateral demand. view type ise asserted, signature hardly defendant can be considered an unequivocal acceptance. par This is so ticularly present where, alleged case, acceptance incorporated “slipped” into the agree ment between the lessor and the third party.
I reverse would, judgment entered therefore, the court and enter de- judgment below favor fendant.
I further with Mr. Justice agree Cohen's observa- adequate allegation tions absence of an concerning ox delivery. defeats the This, itself, right pleadings. opinion.
Mr. Justice Jones joins dissenting Appellant, ex rel. Commonwealth Knowles, v. Rundle.