Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
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In March 1945 Irvin B. Romig along with C. Raymond Cleaver and Katherine G. Cleaver, his wife, bought a tract of about 4 1/2 acres of land partly in the Borough of St. Lawrence and extending into Exeter Township in Berks County. Romig paid $450, being one-half of the purchase price, and the Cleavers paid a like amount; the land was conveyed to them as tenants in common, the Cleavers together taking an undivided one-half interest by entireties. After the purchase of the land Romig on April 9, 1945, entered into a written agreement with the Cleavers providing: '* * * it is now agreed by and between the said parties to these presents that in the event of the death of either the party of the first part or the party of the second part the survivor shall have the option of purchasing the decedent parties interest in said tract for the sum of four hundred and fifty dollars ($450.00) this being one half of the original purchase price of nine hundred dollars ($900.00).' On June 2, 1945, a second writing was executed by the same parties which provided that in the event of the death of either
[ 172 Pa. Super. Page 337]
Romig or both of the Cleavers '* * * the survivor shall upon thirty days' notice from the legal representative of the deceased, pay to the estate of the deceased the sum of Four Hundred Fifty ($450) Dollars, * * * and receive thereof a quit-claim deed from the legal representative of the estate of the deceased to all right, title and interest in said land * * *.'
Irvin B. Ronig died testate on December 11, 1949; Reading Trust Company was appointed administrator c.t.a. of his estate. Under the will Leroy H. Romig, son of decedent, received a one-half interest in the residuary estate after the payment of specific legacies. On February 18, 1950, the Cleavers tendered $450 to the Reading Trust Company and demanded a conveyance to them of decedent's one-half interest in the land. On the refusal of the Trust Company as administrator to comply with the demand, the Cleavers in this proceeding petitioned the court to decree specific performance of decedent's contract. All parties in interest under his will were given notice of the petition by citation, in accordance with § 18 of the Fiduciaries' Act of June 7, 1917, P.L. 447, 20 P.S. c. 3, Appendix, §§ 611-616, then applicable. The court, after hearing, ordered specific performance of the contract as prayed for. Both the administrator of the estate of Irvin B. Romig and Leroy H. Romig, residuary legatee, have appealed.
It is now, for the first time, asserted that the contract between the Cleavers and Irvin B. Romig did not give them the right to buy after his death, but on the contrary gave the representative of his estate the option of offering to sell his interest in the land to the Cleavers and compelling them to buy for $450 upon 30 days notice. The original agreement of April 9, 1945, was drawn by a justice of the peace. There is evidence that, as drawn, the agreement was criticized by appellant Leroy H. Romig on behalf of his father
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and that after consulting with the Cleavers, he drew the contract of July 2, 1945, principally to put a time limit of 30 days after notice, on the right of a survivor to exercise the option to buy. He inserted other provisions not in issue here which admittedly clarified the understanding of the parties. He testified that Mrs. Cleaver asked him to draw another contract because the original agreement was not sufficiently specific and was not complete. The second contract clearly was intended to supplement and not supplant the first. That is clearly indicated by this recital in the second agreement: '* * * it being the intention of this agreement to modify and supplement a similar agreement entered into between said parties under date of April 9th, 1945 * * *.' The parties during the life of Irvin B. Romig, and certainly after his death up to the time of this appeal, construed the agreement as giving the Cleavers the option to buy the decedent's interest in the land.
In interpreting the written agreements our endeavor should be to effectuate the intention of the parties. Hess v. Jones, 335 Pa. 569, 7 A.2d 299. And since both the parties to the agreement placed the interpretation upon it, contended for by the petitioners, that meaning is to be adopted as a manifestation of their agreement. Cf. Restatement, Contracts, § 235(e). Moreover, in the answer of Leroy H. Romig, appellant, he did not deny that the Cleavers had an option under their agreement with Irvin B. Romig to buy his interest after his death and the right was not questioned by his counsel in stating the theory of the defense nor in this appellant's requests for findings on the trial of this case. It was taken for granted in the court below that the contracts gave the Cleavers the option to buy and the case was tried and defended on that theory. For this reason alone appellant cannot
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now construe the contract otherwise. Our appellate courts will not consider 'any new theory or attitude toward the trial of the case, which was not properly before the court, under the theory on which it was tried * * *.' Morrett v. Fire Ass'n of Philadelphia, 265 Pa. 9, 108 A. 171, 172.
The above comment also bears directly on the appellants' contention that the contract was uncertain and should not be enforced specifically for that reason under the established rule of Beaver v. Slane, 271 Pa. 317, 322, 114 A. 509 and like cases. In addition to the construction put on the contract by the conduct of the parties in interest, there is testimony of Katherine P. Cleaver, of Irvin B. Romig's original proposal to her that they buy the land in common and that on the death of either, the survivor have the option to buy the decedent's share at cost. And she also testified that at the time of the execution of the agreement of July 2, 1945, Irvin B. Romig said: 'Now there is no change made in the $450, the only change is the thirty days after notice' within which it must be paid. She was an incompetent witness under the Act of May 23, 1887, P.L. 158, § 5(e) 28 P.S. § ...