Eareckson v. Hoyt

Opinion by

Head, J.,

The learned court below made absolute a rule for judgment for want of a sufficient affidavit of defense and the defendant appeals.

The plaintiff sues on a written lease in the usual form containing the familiar covenants to be almost universally found in demises of city property. He seeks to recover the amount of the rent reserved for a period of two months which rent had undeniably accrued under the terms of the lease. With the averment of the due execution of the instrument, its extension, by its own provisions, for a second term of one year, and the refusal of the defendant to pay according to biis written covenant, the plaintiff's prima facie case was complete.

The defendant, in his affidavit, admits lie signed and sealed and, in the presence of a subscribing witness, delivered the written lease in the precise form in which it appears in the pleadings. He admits he received and retains possession of the premises demised, and thus obtained the full consideration moving to him. He agrees that no notice of an intention to determine the lease was given by either party within the time stipulated, and that thereby all of the obligations of the contract were revived and the term extended for the full period of one year, to wit, from November 1, 1913, to November 1, 1914. He accepts as true the averment that he refused to pay any rent for the first two months of the renewal year.

He then proceeds to aver that whereas the lease reserves an annual rental óf $420 the parties agreed in parol such rental for the term, or any renewal thereof, should be but $350. Further, that although the written instrument stipulated that the reserved rent should be “payable monthly in advance in sums of thirty-five dollars on the first day of each and every month during the said term or any renewal thereof”; the parties, again in parol, agreed such sums should be paid only during ten months of any renewal year, and that for the months of November and December, in each renewal year the lessor was to have nothing. He therefore claims no rent accrued during the period covered by this suit. We have not then the averment of a collateral agreement, resting in parol, without the aid of which, the written instrument cannot be justly interpreted. Nor have we the case of a subsidiary or ancillary oral undertaking covering other matters, the legal effect of which would be to limit or restrict the written covenants to conditions not expressed in the latter. There is no averment that the use which the plaintiff now seeks to make of the lease is in violation of any such collateral agreement as we have mentioned. Manifestly there is no pretense that through fraud, accident or mistake the written lease contains aught else than the parties clearly intended it should contain.

We have but a frank and simple undertaking, by one party to a written contract, to expunge and obliterate therefrom the provisions affecting its most vital covenants and to substitute therefor. others, resting in parol, covering precisely the same subject-matter, and destructive of the obligations solemnly and knowingly inserted in the written instrument. We know of no principle of law or rule of reason that would sanction such an attempt. We find no support for the contention here advanced either in Gandy v. Weekerly, 220 Pa. 285, or in Croyle v. Land Co., 233 Pa. 310, upon which the appellant relies.

If w'e ever reach the point where men may so easily relieve themselves of their written obligations, the latter will become worse than worthless and the chief reliance of men, in their business activities, will be greatly impaired if not entirely destroyed.

The judgment is affirmed.