Tallman v. Edwards

Opinion by

Head, J.,

In January, 1903, at the inception of the negotiations out of which this case arises, Jackson Tallman, the plaintiff, was • the owner of an estate for years in certain premises on Market street in the city of Philadelphia. This estate he had acquired by a lease from the owner, the unexpired term of which at the time aforesaid, was about four years. The annual rent reserved in said lease was $6,000. By a provision in the lease the tenant was forbidden to sublet or assign his lease without the consent of the owner. Charles B. Edwards, the defendant, being anxious to secure this estate of the plaintiff, obtained from him a written option in which it was agreed that the defendant might purchase all the right, etc., of the plaintiff in the existing lease, “ the said option to terminate at three o’clock on the afternoon of Monday, January 19th, 1908.” The consideration for the assignment of said lease was to be payment of $2,500 in cash to the plaintiff, and the further payment by the defendant of “ any charge for professional services made by J. M. Gummey & Sons (the agents of the owners) in ' connection with the transfer of said lease.” It is important to observe that this agreement contains no provision requiring a formal acceptance of the option by the defendant, and is therefore silent as to the manner or form in which the fact of acceptance should be indicated. Under such circumstances the defendant could formally accept in writing or verbally, or such acceptance could be as certainly, although informally, indicated by a course of conduct by the parties which would naturally and rationally lead to the conclusion that they mutually understood and dealt with the situation as one in which the fact of acceptance was conceded by both. Manifestly, therefore, when a dispute arose between them as to whether there had been an acceptance at all of this option, whether the terms of it had been subsequently modified by parol, and whether after being so modified it had been accepted, all these questions became questions of fact to be found by a jury under all the evidence.

Armed with this option the defendant then sought, with the aid of Gummey & Sons, to secure the consent of the owner to the proposed transfer. After some time expended in this effort he learned that he could not obtain the necessary consent unless he would agree to pay to the owner, in addition to the rent reserved in the plaintiff’s lease, certain municipal taxes. He then met the plaintiff and, according to the testimony of the latter, informed him of this fact and also that the bill of Gummey & Sons would be $150. By reason of these additional burdens which his tenancy must carry, he declared his unwillingness to pay to the plaintiff as much as $2,500, but offered to pay him $2,000. The plaintiff agreed to accept it. Just when this parol agreement was made the evidence does not disclose. It may have been made on or before January 19 ; between that date and January 21, or on the last named day.

The agreement of January 12, contained a simple stipulation that if the deal went through the plaintiff would deliver possession of the premises to the defendant on or before May 1, 1903, without any provision to summarily enforce such a covenant. On January 21 a second agreement in writing was executed. This agreement first recites in due form that “ the party of the first part (the plaintiff) for and in consideration of the sum of two thousand dollars, has assigned, transferred and set over to the said party of the second part (the defendant), all his right, title, etc.,” in the premises, and then goes on “ Now therefore it is agreed^ etc.,” that if the defendant should obtain a new lease from the owner satisfactory to him the plaintiff would deliver possession on or before May 1, and concludes with a warrant of attorney authorizing the entry of an amicable action of ejectment for the premises, the confession of a judgment therein without stay of execution, and a waiver of the right of appeal.

This paper considered by itself contains no words of a present assignment or transfer, no covenant on the part of the plaintiff to do any such thing in the future, and no promise on the part of the defendant to pay any money at any time. It recites both the assignment and the payment of the money as things already done. Its sole covenant is but an amplification of the previous one on the part of the plaintiff to deliver possession, to which is added a summary remedy for its enforcement. We think, therefore the learned trial court was right in holding that it should be construed as supplemental to rather than as a substitute for the agreement of January 12.

The plaintiff, therefore, contends that he undertook to transfer and convey to the defendant his estate for years in consideration of the payment by the latter of $2,500 in cash and the bill of Gummey & Sons, which it is agreed was $150. That some time later the defendant sought and was granted a reduction in the first item, but that he neither asked for nor received any release of his promise as to the second item. That the option as thus modified was accepted; that he has fully performed his covenants both a's to the transfer of his estate and the delivery of possession, but the defendant, although he has paid the plaintiff the f 2,000 in cash due him, has refused to pay the bill of Gummey & Sons which the plaintiff, therefore, was required to pay. The defendant contends that the option of January 12 was never either modified or accepted but became entirely dead and without force at the time named in it. That the subsequent parol arrangement reducing the price to $2,000 and the written contract of January 21, were wholly independent of and without any relation to the earlier contract and represent the entire and only agreement of the parties.

Had the option provided for its own extinguishment on January 19, unless then converted into an agreement by a written notice of acceptance; or even if the undisputed evidence showed that the parol agreement which both admit was made after the expiration of the option, this position might be tenable. But under all the evidence, as it appears in the record we cannot but conclude that the learned trial court was right in submitting to the jury the question whether ór not the original option was modified by parol and, as thus modified, was accepted. The manner of the submission left nothing for the defendant to complain of.

The argument of the learned counsel for the appellant that the lease of the plaintiff never was actually assigned is without merit. True, there never was a formal written assignment. It was not demanded and apparently not deemed important. The lease itself was in fact handed over to the defendant, the plaintiff received the money therefor, except the small item herein sued for, vacated the premises and installed the defendant in possession. These things were regarded by the parties as a satisfactory performance of his covenant to assign. They leave the defendant in the quiet and secure enjoyment of the estate he bought and would render wholly futile any attempt of the plaintiff to dislodge him.

The assignments of error are overruled and the judgment is affirmed.