DocketNumber: Appeal, No. 257
Judges: Ervin, Flood, Lower, Montgomery, Rhodes, Watkins, Woodside, Would, Wright
Filed Date: 11/12/1964
Status: Precedential
Modified Date: 10/19/2024
Opinion by
On December 19, 1960, Michael Fedun and Pauline Fedun, owners by the entireties of premises known as 244 North Eighth Street, Philadelphia, Pennsylvania, confessed judgment in the amount of |4,996.16 against Mike’s Cafe, Inc., a Pennsylvania corporation, Samuel Gomer, and Morris Gomer, lessees, based on a ten-year lease, allegedly in default, which had been entered in
The damages awarded in the judgment were for unpaid rent from July 1, 1960, through August 31, 1961, the expiration date of the ten-year term of the lease, in the sum of $3,500; unpaid excess water and sewer rentals from January, 1957, to February 15, 1960, in the sum of $1,094.16; electrical repairs, $227; and attorney commissions, $175; or a total of $4,996.16.
Appellees contested the claims for two reasons, viz., (a) the landlord had assumed possession and leased the premises to a new corporation, 244 Bar, Inc., during the period of the alleged default in rentals
It is appellees’ contention that in November, 1960, there was no rent due and thereafter the old lease was revoked by the new lease to the 244 Bar, Inc. They also testified in their depositions that they had been released from the old lease in 1956 when they sold the business to Brown, although such release was not alleged in their petition to open the judgment.
The question of whether or not the new lease to the 244 Bar, Inc., effective January 12, 1961, affected appellees’ liability under the original lease or the judgment thereon is not properly before us on this appeal. Judgment having been confessed on December 19, 1960, prior to the effective date of the new lease, January 12, 1961, appellant’s rights were fixed, if at all, to the full amount of the lease in default on that date; and at the time of execution on such judgment, the appellees would have an opportunity to contest the matter of the new lease and its effect on the judgment. Executions are within the equitable control of the court from which they are issued. 7 Standard Pennsylvania Practice 270, Execution §5.
“In September 1956 a meeting took place in the leased premises between plaintiffs Michael Fedun and Pauline S. Fedun and defendants Samuel Gomer and Morris Gomer, when defendants informed plaintiffs they wished to terminate all their liability under this lease, and that such liability would be assumed by one Charles Brown, to whom they were about to sell the said restaurant and taproom business. The plaintiff-lessors orally agreed to terminate the lease as to defendant-lessees upon sale of the business to Brown as stated and, upon defendants’ request, plaintiffs signed a paper to that effect. . . .
“The new tenant, Charles Brown, to whom defendants on October 16, 1956, sold their said business, took possession of the leased premises in due course, with the full consent of the plaintiffs, and occupied the same until February, 1960, when, again with the full consent of plaintiffs, he sold this business to still another buyer, namely, the 244 Bar, Inc., to whom, on November 21, 1960, Michael Fedun, one of [the] plaintiffs, admittedly executed a new lease for a five-year term beginning January 12, 1961.
“After the sale to Brown as aforesaid of their business on October 16, 1956, defendants Samuel Gomer and Morris Gomer, who are brothers, dissolved their partnership and separated.”
It was solely on the basis of this finding of a release that the lower court rendered judgment for appellees. The assessment of damages was not seriously questioned by appellees and, although Judge Gilbert refers to a partnership existing between the appellees, the record clearly shows that this business was a corporate operation and not a partnership. The liquor license was in the name of the corporation from 1951
There is otherwise no basis in the record nor is there any reason for presuming that the parties dealt with the corporation, Mike’s Cafe, Inc., as a partnership or sole proprietorship, or that we should ignore the existence of the corporation. No harm will result to any third party by our recognizing the corporation, except as to the Gomers individually, and they, themselves, have virtually conceded that the corporation continued in existence through 1960, at least. It is only when justice or public policy demands it and when the rights of innocent parties are not prejudiced thereby nor the theory of corporate entity made use
The appellant objects to the admission of the testimony by deposition of Samuel Gomer and Morris Gomer as to events occurring in the presence of Michael Fedun and taken after his death, under the Act of May 23, 1887, P. L. 158, §5, cl.(e), 28 P.S. §322. However, since the ownership of the premises subject to the lease admittedly was held by Michael Fedun and Pauline Fedun as tenants by the entireties and the judgment was confessed prior to the death of Michael Fedun, all right, title, and interest in both the property and the judgment devolved to the surviving spouse. Only an interest on which judgment in the case will operate is such an adverse interest as will disqualify a survivor from testifying concerning transactions with a decedent. Logan Lumber Co. v. Knapp, 155 Pa. Superior Ct. 580, 39 A. 2d 275 (1944). In Western Pennsylvania National Bank v. Bradish, 194 Pa. Superior Ct. 126, 166 A. 2d 104 (1960), we held that an adverse party seeking to enforce an obligation against the surviving spouse concerning property held by entireties prior to the death of the one spouse is competent to testify in regard to matters occurring between the parties during the lifetime of the decedent. By the nature of an estate held by tenants by the entireties, upon the death of her spouse Pauline Fedun did not succeed to the interest of her deceased husband but is now attempting to enforce only her own rights.
The appellees have argued that the judgment should be for them on the basis of any one or all of three theories: that a valid release of the liabilities of Samuel and Morris Gomer under the lease was executed because of adequate consideration therefor; that there was an effective rescission of the lease agreement be
Having ruled that the depositions are admissible, the facts relating to the release interpreted most favorably to the appellees, the verdict winners, are as follows. In the fall of 1956 the Gomers decided to sell the business, Mike’s Cafe, Inc., located in the leased premises, and opened negotiations with a Charles Brown for the sale of their shares in the corporation for a purchase price of ¡$35,000. They notified the Feduns of their intention to sell and invited the Feduns on the leased premises, where the Feduns agreed, first orally, and later in writing, to cancel the existing lease as to the appellees, Samuel Gomer and Morris Gomer, on the condition that the sale of the business to Charles Brown would be effected. Samuel Gomer testified that Michael Fedun said, “Sam, you are getting thirty-five thousand dollars so you have nothing to worry about. The taproom is good enough security for us, Mr. Brown is paying a good price for it, and we will release you from all obligations under the lease, both you and your brother.” Each of three deponents, Samuel and Morris Gomer, and Max Fish-man, testified to the writing, which was lost subsequently. No objection to the proof by parol of the lost alleged written release having been preserved by the appellant, we shall assume that such a release was duly executed and delivered by the Feduns to the Gomers. The writing was signed by Michael Fedun and Pauline S. Fedun and read as follows: “We, Pauline and Mike, release you from all obligations under the Lease, for the balance thereof, and will not
Release
Appellant contends that the release was ineffective because of lack of consideration. Generally a valid release requires a consideration or an equivalent such as seal, promissory estoppel, or a statement that the signer intends to be legally bound. American Equitable Assurance Company of New York v. Mussoline, 201 Pa. Superior Ct. 271, 191 A. 2d 862 (1963). The record contains no allegation or proof of consideration for the release. The release was not signed under seal and no money was given by the Gomers to the Feduns for the release. There was not a writing stating that the Feduns intended to be bound legally, as provided for by the Uniform Written Obligations Act of May 13, 1927, P. L. 985, No. 475, §1, 33 P.S. §6, which is a valid substitute for consideration. Appellees argue that the acceptance by the Feduns of Charles Brown as a substitute tenant is sufficient consideration for the release under Rosenblum v. Edwards, 137 Pa. Superior Ct. 33, 8 A. 2d 468 (1939), in which it was held by this Court that a landlord can make a valid agreement to release a tenant, provided that the tenant secures someone else to take his place, and the agreement of the new tenant to be bound for the balance of the former tenant’s term is sufficient consideration for the landlord’s release of the first tenant. The record contains no evidence on which a finding of such substitution can be based.
Rescission
The appellees have cited ample authority to support their theory that there could have been a rescission of the contract of lease in 1956 but they have failed to offer sufficient evidence to prove the rescission. A rescission of a contract must be supported by consideration. York Metal & Alloys Company v. Cyclops Steel Company, 280 Pa. 585, 124 A. 752 (1924). In Markson Bros. v. Redick, 164 Pa. Superior Ct. 499, 506, 66 A. 2d 218, 221 (1949), quoting from 12 Am. Jur., Contracts, §412, we stated, “Each party must gain or lose something by the exchange. If the benefit or detriment is unilateral, a consideration is lacking, ... If one party to a contract, in agreeing upon a modification of it, neither assumes an additional obligation nor renounces any right, the promise of the other is nudum pactum and void.” Even if we were to assume that the Feduns and the Gomers sincerely intended to rescind the agreement of lease as to the Gomers, no consideration therefor or any gain accruing to the Feduns from the rescission appears in the record. As we have found above, there is nothing in the record to show that the Feduns accepted Charles Brown in lieu of the obligation of the Gomers, which would have been ample consideration for rescission, nor is there anything in the record alleged or proved to the effect that the Gomers paid moneys for their release. A surrender by the Gomers of physical possession of the
Promissory Estoppel
Appellees contend that appellant is estopped from holding them to the terms of the lease. Under the doctrine of promissory estoppel, a promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such
Order reversed, and judgment re-entered for appellant in the amount of $4,996.16, with interest from December 19, 1960.
The death of Michael Fedun was suggested to the court but the caption of the case was not amended. However, we shall consider it as having been amended by the elimination of Michael Fedun’s name.
It was stipulated that a lease between Michael Fedun and the 244 Bar, Inc., for the same premises had been entered into
It would appear that from February, 1960, until January 12, 1961, when the new lease became effective, the 244 Bar, Inc., operated the business in the same manner as Brown had operated it, under the lease to Mike’s Cafe, Inc., and the Gomers,