195 A. 422 | Pa. | 1937
We held when this case was here before,
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 *163 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. *164 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,
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,
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.,
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,
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 benefit do not choose to invoke the statute. It is well settled that this statute does not defeat the desire of a trustee to honestly perform an oral trust of an interest in land, but merely voids the trust at his option: Faunce v.McCorkle,
We will follow the majority rule as the best to promote justice with regard to invoking the statute of frauds. The majority view is that a party will be deemed to have renounced his rights under the statute of frauds if he does not in some way make known to the court his intention to invoke it either by pleading specially or interposing a timely objection to testimony in support of the oral agreement, or by claiming its protection in some other manner that gives the opposition opportunity to meet the objection. This is the most equitable rule and need not be applied as a rule of substantive law irrespective of the circumstances. To permit a party to invoke the statute of frauds for the first time on appeal would be manifestly unfair. A party seeking to enforce his oral contract would be misled and refrain from proving facts by way of part performance, or otherwise, which would automatically take the contract out of the statute of frauds. It does not do to say, "You know what the law is, bring your contract within it." The facts are pleaded as they exist. Thus A orally sells land to B, who goes into possession and makes improvements. A refuses to convey. B pleads his contract. A must set up in some way the statute to put B on notice so he may be prepared to meet the objection. This was recognized in Am. Products Co. v. RefiningCompany, supra. In this way the defendant is given a warning that he must develop facts which will take his case out of the statute of frauds if he is to prevail, and it will not be enough for him to convince the jury of the existence of a parol contract.
As mentioned above, appellants made no effort whatsoever to make known their intention to invoke the statute of frauds in the court below at any stage of the proceding. Their attempt to invoke it on this appeal cannot *170 be recognized. Under the circumstances they must be held to have waived their rights under the statute.
The case was submitted to the jury on this theory, and there is ample testimony to support the jury's finding that there was a parol modification, which appellee had fully complied withup to the time of the bringing of this suit, and, consequently, was not in default for rent. As pointed out in appellants' previous appeal, the evidence of a subsequent parol modification of a written contract must be convincing to sustain a finding of its existence. The burden of proof imposed upon the party asserting the parol modification would not be satisfied by his word alone. Nor would evidence of part performance by payments of amounts less than those provided for by the contract be of sufficient corroborative force to carry the question to the jury. Such evidence, without more, does not weigh the scales one way or the other, and is entirely compatible with a finding that the landlord through indulgence and out of consideration for the tenant, who is financially embarrassed, allowed him a period of grace in which to make full payment, in the meantime accepting whatever he could pay on account of the rent due. If the law should definitely attribute to the receipt of an amount less than that due under a contract an intention to modify the provision of the written instrument to correspond to the amount received, it would make it extremely dangerous for landlords and others to adopt a lenient attitude toward their obligors and discourage indulgence and leniency in times of hardship. But here the evidence reaches beyond the word of Slanicus and the receipt of less than the amount due, and meets the burden placed upon appellee.
It is undisputed that from the time appellee entered into possession as tenant he fully complied with the terms of the parol modification by making payments on a percentage basis, which varied according to the conditions of business. The adoption of this new method of computing the rental due and strict adherence to it with *171 full knowledge of the lessors indicated an intention to depart from the terms of the written lease with respect to the rent payable. Otherwise it would have been vain to compute each week the amount due based on a certain percentage of the gross receipts. Some of these payments were made in cash and others by check, bearing the notation that they were for rent due during a particular week. The records kept by the Sferras of the weekly rental payments received from appellee did not indicate that there was any arrearage or that the payments were merely accepted on account of the rent due under the written lease. The payments in amounts different from the rent provided for by the written lease were accepted by the lessors without protest or demand for more. Some of the payments made by appellee after business conditions improved exceeded the amountcalled for by the lease. The evidence shows that for a period of over four years, up to appellants' attempt to eject appellee, he faithfully performed and executed the terms of the parol agreement substituting payment of rent on a percentage basis of the gross receipts for payment of a fixed amount. Now that the motion picture business has picked up and profits are being reaped, appellants cannot hold appellee responsible for rent, as stipulated by the written lease, at least for the period during which the oral modification has been executed by periodic payments in accordance with its terms.
Furthermore, the evidence is sufficient to justify findings that appellee succeeded to the rights of the original lessee, Urling, under an assignment from him; and that appellants, by recognizing appellee as assignee and accepting rent from him as tenant, waived the stipulation in the lease requiring written consent to an assignment. No discussion is necessary of the possibility of waiver of such a condition by the conduct of the lessor. This matter was fully discussed in the previous opinion, and the court below submitted the question to the jury on the basis of the rule there laid down. *172
It is useless to enter into a prolonged discussion of appellants' contention that since appellee admittedly failed to pay Urling the full consideration due under the assignment, he could not claim any rights under it. This defense is not available to appellants, being purely the concern of Urling as assignor. It may well be that Urling has released appellee of this obligation, or has given him an extension of time in which to perform. However this may be, there was sufficient evidence to show that appellee did take over the lease as the assignee of Urling, and his compliance or noncompliance with the provision of the assignment respecting the consideration due Urling has no material bearing in this case. Appellants cannot defeat his rights as assignee on the ground of his failure of consideration to his assignor.
Appellants contend that the terms of the parol modification, even if appellee's testimony is accepted at its face value, are so vague, uncertain and lacking in precision as to render it unenforceable under the law. We need not consider the evidence in this respect, since this is not an attempt to enforce the agreement. It may be that because no percentage was fixed, it could not be accorded legal recognition as an executory contract, but in so far as the parties have executed it, the question whether its terms are sufficiently certain to meet the requirements of law drops out of sight. What is to be done in the future may be another question.
The last matter remaining to be considered is appellants' contention that at the time of the assignment of the lease by Urling to appellee, Urling admittedly was in default for rent in the amount of $1,500, which has never been paid them by either appellee or his assignor. It does not appear that appellants have made any demand upon appellee for the payment of this back rent. Their conduct in accepting appellee as tenant and receiving rent on a modified basis over a period of years has effectively waived their right to eject him for this default; and, even if enforceable, at least reasonable *173 notice of their intention to compel its payment would be required. Nothing need be said with regard to their right in the future to compel this default to be made good. It is sufficient that it is not involved in the present case.
Judgment affirmed.