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July 20, 1950



Louis L. Kaufman, and Louis Vaira, Pittsburgh, for appellant.

John M. Walker, Morris F. Cohen, and George S. Goldstein, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Ross

[ 167 Pa. Super. Page 370]

ROSS, Judge.

This is an action in assumpsit brought by the plaintiff against her divorced husband to recover payments alleged to be due on a separation agreement executed before the divorce. The contract, executed on October 26, 1944, stated that the parties had not been living together since March 24, 1934; that there was no opportunity for reconciliation, and that they desired to settle their rights and make provision for their two children in the event the marriage was dissolved. It was agreed that the husband would convey the family residence to the wife in full settlement of any claims arising out of their marital relationship for support which she had or would have in the future against him. The defendant agreed to pay the wife $2000.00 to be used as a trust fund for their two children and that, in lieu of a support order, the defendant-husband would pay the wife the sum of $50.00 per month for the maintenance and support of the children so long as the wife should live. The parties were divorced on October 31, 1944. The plaintiff's statement of claim pleaded the agreement, and that under it there was $300.00 due on August 1, 1945, for which the suit was brought. The defendant denied that he was liable in the amount claimed, asserting that one of the children was married and that the other was self-supporting. At the trial of the case on November 9, 1948, the court permitted the plaintiff to amend her pleadings so as to claim $2250.00, and then directed a verdict in this sum with interest. Defendant's motions for judgment n.o.v. and a new trial were refused by the court below and this appeal was taken.

The defendant does not question the legality of the contract and since there is no allegation or contention that anything was omitted from the written contract by

[ 167 Pa. Super. Page 371]

    fraud, accident or mistake, oral testimony as to the defendant's understanding of the contract was properly excluded. The rights and obligations of the parties are determined by the written contract and since it is expressed in clear and unambiguous terms, its interpretation was for the court. Onofrey v. Wolliver, 351 Pa. 18, 21, 40 A.2d 35, 155 A.L.R. 1074. Hence, there was no issue to submit to the jury.

The defense to the cause of action is solely that the defendant has ceased to be liable for payments under the contract because the children for whose 'maintenance and support' the payments were to be made are now self-supporting, one being married and 'maintained by her husband', and the other, employed, 'maintained and supported herself'. However, the parties themselves expressly stipulated that the defendant-husband should make the monthly payments 'during the life' of the plaintiff, the wife. In the contract, the husband is designated as the party of the first part and the wife as the party of the second part, and the pertinent paragraph reads as follows: 'In lieu of support order at No. 57 December Session 1933 in the Court of Quarter Sessions of Armstrong County, the party of the first part agrees to pay to the party of the second part, the sum of $50.00 per month for the maintenance and support of their two children, so long as the party of the second part shall live.'

In Biery v. Steckel, 194 Pa. 445, 45 A. 376, a husband by a contract of separation agreed to pay $25.00 a month for the support of his wife and daughter 'during the natural life' of the wife, and executed a bond for performance of the obligation. Later the husband refused to pay the amount stipulated, tendering instead $15.00 a month, on the ground that the daughter had married after execution of the agreement and bond and 'was no longer a charge upon her mother'. In holding that the husband was not thereby released from paying the full

[ 167 Pa. Super. Page 372]

    monthly amount stipulated, the Supreme Court stated in 194 Pa. at page 448, 45 A. at page 377: 'There is no ground whatever for the obligor's contention that the marriage of his daughter reduced his liability upon the contract from $25 per month to $15 per month. It is a contention flatly opposed to the plain provisions of the articles of separation. * * *'

In this case, there is nothing to suggest or imply that anything except the death of the wife would warrant the stopping of the payments to her by her former husband, whether the children needed the payments for their support or not. As we stated in Adams v. Adams, 32 Pa. Super. 353, at page 355: 'No fraud, coercion or concealment on the part of the wife is suggested by the husband, and if the bargain is a hard one under the present conditions, it is one of his own making and he must be held to its performance.' In our opinion, the defendant's contention that he is relieved from payments under the contract is ruled against him by the Biery and Adams cases, supra.

In her statement of claim, filed on August 1, 1945, the plaintiff sought recovery of 'the sum of Three Hundred ($300) Dollars * * * as well as additional sums as may hereinafter become due * * *' under the terms of the contract. When the action was tried on November 9, 1948, the amount then due under the terms of the contract was $2250.00, and before directing a verdict for the plaintiff, the court below allowed her to amend her statement to claim $2250.00. The defendant contends that the court erred in allowing the amendment. There is, of course, no merit in this contention.

Pleadings may be amended at any stage of the proceedings and the matter is one within the discretion of the trial court. McNernie v. Peace, 344 Pa. 24, 24 A.2d 12. Liberality is the first consideration in determining the right to amend where an amendment will enable

[ 167 Pa. Super. Page 373]

    the plaintiff to secure a just disposition of his case on all of its merits. Wessling v. Latkanich, 144 Pa. Super.Ct. 317, 19 A.2d 553. Pa.R.C.P.No.1033, 12 P.S.Appendix, effective January 1, 1947, provides in part: 'A party, either by filed consent of the adverse party or by leave of court, may at any time * * * amend his pleading. * * * An amendment may be made to conform the pleading to the evidence offered or admitted.'

Here, if the defendant's contractual obligations continued, it is not denied that he was in default in monthly payments in the amount of $2250.00 at the time of the trial of the case. Consequently, the amendment contained no element of surprise and its allowance by the trial court before directing a verdict did not adversely affect any of defendant's rights. Even after verdict a statement of claim may be amended increasing the amount of damages sought. Felo v. Kroger Grocery & Baking Co., 347 Pa. 142, 31 A.2d 552.

Judgment affirmed.


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