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MATHERS v. ROXY AUTO COMPANY (01/04/54)

January 4, 1954

MATHERS, APPELLANT,
v.
ROXY AUTO COMPANY



Appeal, No. 289, Jan. T., 1953, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1952, No. 892, in case of David Mathers v. Roxy Auto Company. Judgment affirmed.

COUNSEL

Edwin Fischer, for appellant.

Sylvan C. Balder, with him Stephen J. Korn and Blanc, Steinberg & Balder, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 375 Pa. Page 640]

OPINION BY MR. JUSTICE CHIDSEY

Plaintiff, David Mathers, brought suit in assumpsit against the defendant corporation, Roxy Auto Company, to recover damages for breach of an alleged oral agreement by the defendant to purchase liability insurance, which agreement plaintiff claims was entered into about two days prior to the execution of a written

[ 375 Pa. Page 641]

    bailment lease covering the purchase by plaintiff of an automobile. About three weeks after the execution of and during the term of the bailment lease, a pedestrian was struck and injured by the automobile while being operated by the plaintiff. The damages claimed by plaintiff in his action against the defendant were averred to have resulted by reason of defendant's alleged failure to procure such liability insurance in that the plaintiff would be compelled to pay whatever damages might be payable by him to the injured pedestrian and as well the expense of defending an action by the latter for the recovery of damages; other consequential damages were alleged.

To plaintiff's complaint defendant filed an answer denying the oral agreement and setting up as new matter the bailment lease which it claimed constituted the entire agreement between he parties. Plaintiff filed a reply admitting the execution of the bailment lease but again alleging the existence and efficacy of the oral agreement. The defendant moved for judgment on the pleadings, assigning as a reason therefor the invalidity of the alleged oral agreement under the parol evidence rule. The court granted the motion and plaintiff appeals from the judgment thereupon entered for the defendant.

Appellant does not contend that the question of applicability of the parol evidence rule can not be raised on a motion for judgment on the pleadings. Nor could he: See O'Brien et al. v. O'Brien, 362 Pa. 66, 66 A.2d 309. His contention is that the oral agreement relied upon is without the parol evidence rule. The bailment lease, of standard form, with all of its provisions contained on one side of a sheet of paper, was attached to and made a part of defendant's answer. It disclosed that the plaintiff purchased from the defendant, a used car dealer, a second-hand Chrysler coupe

[ 375 Pa. Page 642]

    for the price of $956.50. Down payment of $445.50 was made at the time of purchase of which $206.50 was paid in cash and the remaining $239.00 was given as a credit for an automobile which plaintiff delivered in trade. In the right-hand column of the bailment lease there was the following provision: "The motor vehicle shall be at Lessee's risk. The holder as creditor of Lessee is authorized to purchase fire, theft and such other insurance in such form and amounts as the holder and Lessee may agree; Lessee hereby assigns to the holder any moneys not in excess of the unpaid balance hereunder which may become payable under such insurance, including return or unearned premiums, and directs any insurance company to make payment direct to the holder to be applied to said unpaid balance and appoints the holder as attorney in fact to indorse any draft. Unexpired premiums received by holder resulting from cancellation of insurance, originally placed at Lessee's expense, shall ...


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