Shaffer v. Scharding Et Ux

35 A.2d 270 | Pa. | 1943

At trial, before any testimony was taken, counsel for defendants moved for leave to file an amended affidavit of defense, setting forth an oral subsequent agreement modifying the written agreement upon which the action was brought. The learned trial judge denied the motion on the ground that defendants could not prove parol cancellation, rescission or modification of the written instrument. This ruling was approved by the court en banc, and defendants' motion for a new trial denied. After the entry of judgment for plaintiff, the defendants took this appeal.

The learned court was in error. The parol evidence rule was in no way involved. The case is ruled by Mazer v. Kann, 343 Pa. 376, 379, 22 A.2d 707, where we said: "It does not matter that the new agreement was proved by parol. 'It is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed, or a new one substituted. And this may be shown by parol by showing either an express agreement or actions necessarily involving the alterations': Achenbach v.Stoddard, 253 Pa. 338, 343." See also Magazine DigestPublishing Co. v. Shade, 330 Pa. 487, 492, 199 A. 190.

Judgment reversed and new trial ordered.