Delaware County Trust Co. v. Keenan , 1922 Pa. Super. LEXIS 111 ( 1922 )

Opinion by

Trexler, J.,

Hugh McCaffery leased unto Mary Keenan certain premises for a term of five years at a monthly rental of $100. He died and the trustees under his will brought suit for the rent. On behalf of the tenant a witness testified that Mary Keenan the tenant sent for her landlord and stated to him that she had a chance to sell out her business and the party who desired to purchase, wanted to have a lease on the premises, that as he knew, she had never had a written lease and that she now desired one; that McCaffery agreed to give her a written lease but informed her that in the event of a sale of her establishment, the rent was to be $100, but as long as she remained as tenant, it would be $75 per month. The lease was accordingly prepared by her and called for a rental of $100 per month. The sale fell through and for three months the tenant paid the old rent of $65 and thereafter $75 per month up to the date of the death of her landlord. Checks were produced showing the amount of each monthly payment and as to this there is no dispute.

The plaintiff contends there was nothing to submit to the jury, that the written contract governs and that the testimony offered by tbe defendant did not come up to tbe standard, in that the proof was not verified by two witnesses or one witness and corroborating circumstances equivalent to another. The lower court held that the testimony was sufficient. We take the same yiew. The appellant lays great stress upon the fact that the conversation between the parties to the lease took place a week before the actual signing of it, and that to vary the terms of a written instrument, it must be found that such agreement was made contemporaneously with the execution of the paper, that a week having intervened, the occurrences were not contemporaneous. This is taking too narrow a view of the meaning of the word “contemporaneous.” The evidence shows that the agreement to fix the rent at $75, if the tenant remained, was made at the same time when it was stated the rent in the written agreement was to be $100 and the written lease was made in pursuance of the very conversation had. The language used by the landlord was “Remember, if you make a new lease out, if any newcomers come here, it is $100 to them, but Mary, while you are here, $75 for you.” The word “contemporaneous” does not necessarily import absolute coincidence in point of time. The conversation to which the witness testified and the signing of the lease were part of the one transaction and nothing intervened to interrupt the fixed purpose of the parties.

The court held that there was proper corroboration of the witness in that the landlord accepted $65 for three months and thereafter a check for $75 each month up to the date of his death, a period of nine months. We agree with the lower trial judge that the payment of the monthly sum uninterruptedly and without variation as to amount is not explainable except by the adoption of the truth of the narrative of the witness. These circumstances plainly corroborated her and brought the defendant’s proof within the required rule.

The assignments are overruled and judgment is affirmed.