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January 19, 1954



Nochem S. Winnet, I. Finkelstein, Ellis Rudman, Fox, Rothschild, O'Brien & Frankel, Philadelphia, for appellant.

Victor J. DiNubile, Philadelphia, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.

Author: Wright

[ 174 Pa. Super. Page 551]

WRIGHT, Judge.

This is an appeal from the refusal of the court below to grant plaintiff's motions for judgment n. o. v. and for a new trial after a verdict in favor of defendants. We must assume the truth of defendants' evidence and every inference fairly deducible therefrom. Vogt v. Brady, 108 Pa. Super. 144, 164 A. 96.

On December 28, 1949, appellant entered into a written agreement to purchase appellees' dwelling house situated at 4700 Roosevelt Boulevard in the City of Philadelphia, together with certain articles of personal property located therein. The total purchase price was fixed at $19,000, and appellant gave appellees a deposit of $1,900. The agreement as originally written called for settlement on January 30, 1950. However, before the agreement was executed, the settlement date was changed to February 20, 1950, and this alteration was initialed on the face of the agreement. Appellees testified, and the verdict establishes, that it was thereafter orally agreed by the parties that, should appellees be unable to vacate on February 20, 1950, they could remain in the premises at a rental of $100 for one month, and $25 per week thereafter for an additional period not to exceed two weeks. On February 20, 1950, when the parties met for settlement, appellant demanded immediate possession. Appellees finally agreed to remove their clothing and personal effects that day, and to remove their furniture within the next few days. They actually vacated the premises on February 24, 1950. In this connection Mrs. Olivieri testified that, on February 23, 1950, she told appellant 'we are moving, the moving truck will be there at 8 o'clock tomorrow morning, and everything will be out by five,' to which appellant replied 'all right'.

[ 174 Pa. Super. Page 552]

Appellant refused to consummate the purchase and brought suit in assumpsit to recover the amount of the deposit plus $95 settlement expenses. The trial judge submitted to the jury the question of the existence of the alleged supplemental oral agreement. He stated that, if such an agreement had not been made, the verdict must be in favor of the plaintiff; but that, if the agreement did exist, and had been repudiated by plaintiff, the jury could determine whether defendants had vacated within a reasonable time under the circumstances. Appellant contends (1) that there was insufficient evidence to show the existence of the supplemental oral agreement; (2) that the facts do not 'constitute a waiver or an estoppel'; and (3) that the trial judge erred (a) in his rulings on evidence, (b) in his charge, and (c) in his refusal of plaintiff's points.

It is always competent for the parties to a contract to show by parol evidence a subsequent modification, change, waiver of a condition, or the substitution of a new contract: KoEune v. State Bank of Schuylkill Haven, 134 Pa. Super. 108, 4 A.2d 234. While the burden of proof rests upon the party seeking to establish the change, all that is required is that the evidence be convincing to the jury. Sferra v. Urling, 324 Pa. 344, 188 A. 185. After reviewing the record, we agree with the trial judge that there was sufficient evidence to justify a finding by the jury that appellant entered into the alleged supplemental oral agreement. Mrs. Olivieri testified that appellant was informed that possession would not be delivered on February 20, that 'it might take one month, possibly six weeks longer', and that her husband 'promised to pay Mr. Sipowicz $100.00 for the first month and if it was more than a month he would pay him $25.00 for each additional week'. Mr. Olivieri also testified concerning the terms of the supplemental agreement. Mr.

[ 174 Pa. Super. Page 553]

Lynch, defendants' real estate agent, suggested that the change be put in writing in the agreement of sale. Appellant then said: 'We are all happy now, let us keep it that way. You don't need it in writing'.

The cases relied upon by appellant can be readily distinguished. In Stoner v. Sley System Garages, 353 Pa. 532, 46 A.2d 172, it was held that the terms of a written lease had not been modified by implied consent. In Upsal Street Realty Co. v. Rubin, 326 Pa. 327, 192 A. 481, there was an 'application for lease' which was held to be only a proposal to negotiate. In United Mercantile Agencies v. Slotsky, 121 Pa. Super. 1, 182 A. 788, the acceptance of an offer was not unconditional. In Leskie v. Haseltine, 155 Pa. 98, 25 A. 886, the words 'you ...

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