188 A. 185 | Pa. | 1936
Argued October 5, 1936. Appellants, Angelina Sferra and Elvira Sferra, lessors of a motion picture theater, assign as error the order of the court below opening a judgment in ejectment confessed against Walter B. Urling, lessee, for default in rent. A writ of habere facias possessionem had issued with a clause of fieri facias for the rent. James Slanicus, appellee, claiming to be in possession as assignee of the lease and operating the theater, petitioned to intervene and open the judgment, so that he and Urling might make defense.
The lease was for ten years and contained a provision against assignment without the written consent of the lessors. Urling, while in possession and owing $1,500 *346 overdue rent, entered into an agreement in October, 1931, with Slanicus and Gallas to lease them the theater for six months with an option to purchase his interest in the lease. Gallas withdrew, and Slanicus accepted the assignment from Urling. The testimony of the intervening appellee shows appellants orally agreed to a modification of the rental provision of the lease, with the understanding he should pay 15% of the gross receipts as long as conditions warranted and that, for a period of four years, he paid the rent on the percentage basis, the percentage and amounts varying, without objection or demand for payment at the original rate. The Sferras, on the other hand, denied any parol modification, and testified the payments were merely accepted on account and that frequent demands were made for payment in accordance with the provisions of the written lease. Angelina Sferra admitted Slanicus gave her a copy of his agreement with Urling, but denied consenting to it. She said her understanding was that Slanicus came only as manager and acted solely in that capacity.
The court below decided that the issues of fact should be passed upon by a jury in a trial of an action of ejectment, with the Sferras as plaintiffs and Urling and Slanicus as defendants.
As frequently stated, an application to open a judgment confessed upon a warrant of attorney is in the nature of an equitable proceeding addressed to the sound discretion of the court. There must be more than an oath against an oath or a mere conflict of testimony to justify certification of the issue for jury trial. It is for the court below to pass upon the weight of evidence and credibility of witnesses. SeeMutual B. L. Assn. of Shenandoah v. Walukiewicz,
A careful examination of the record reveals there was no abuse of discretion by the court below. Without reviewing all the evidence, there is sufficient from which an assignment might be found. There is the written agreement between Urling and Slanicus, a copy of which Angelina Sferra admitted she received in the latter part of October, 1931. It is true there is no evidence of written consent having been given, but a jury may find this requirement waived by appellants' conduct over a four-year period in recognizing appellee as tenant and accepting rent from him in that capacity. In Barclay v. TheSteamship Company, 6 Phila. Reports, 558, cited with approval in Johns v. Winters,
The only remaining question is whether there is enough evidence to sustain a parol modification of the provision relating to the amount of rent due. Slanicus takes the position he had not defaulted in rent since he had entered into an oral understanding with the Sferras whereby he was to pay on a percentage basis and that he had fully complied with the terms of lease as modified. The rule is firmly established that there may be an oral modification of a covenant to pay a stipulated rental contained in a written lease: Evans v. Lincoln Co.,
Slanicus testified that he had made payments on a percentage basis in accordance with the oral agreement ever since he took over the lease as assignee without complaint by the lessors or an attempt to enforce the rent covenant of the written lease by demand or otherwise. Under the above rule this testimony, without more, would not permit the question to be passed upon by a jury. Joseph Sferra, the son of Angelina, testified that every week Slanicus furnished them with a statement showing receipts for the week and payment on a percentage basis, and the rental statements show that in some months they exceeded the stipulated rent. The manner of payment for a period of four years corroborates the oral modification. In addition there is the admission of Elvira Sferra that she was satisfied with the arrangement whereby Slanicus paid 15% in 1931 and 1932, and with the 12% paid in August, 1933. The oral modification is supported by a course of conduct *349 showing payment on a percentage basis: see Howard v. Boverman, supra.
The order of the court below is affirmed with a pro cedendo; costs to be paid by appellants.