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GAGNON v. SPEBACK (11/28/55)

November 28, 1955


Appeal, No. 122, March T., 1955, from order of Court of Common Pleas of Indiana County, Dec. T., 1953, No. 260, in case of Edward P. Gagnon v. Charles Speback et al. Order affirmed; reargument refused January 3, 1956.


Harry Alan Sherman, for appellants.

John S. Simpson, with him A. G. Helbling, and Fisher, Ruddock & Simpson, for appellee.

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

Author: Arnold

[ 383 Pa. Page 361]


Defendants appeal from the discharge of a rule to show cause why judgment should not be opened. The judgment was entered on November 2, 1953, by confession upon a note executed on October 31, 1952, by defendant Kuzneski in the name of the partnership. Kuzneski and Spevack comprised the partnership.

The note was given in payment of one-half of the purchase price for potatoes bought from plaintiff and sold and disposed of by the defendant-partnership. At the same time, plaintiff delivered to Kuzneski a bill of sale which provided in part: "... this sale is made with the express understanding that there is no warranty of quality or quantity whatsoever." (Italics supplied). Also noted on the bill of sale was an acceptance in the name of the partnership, signed by Kuzneski.

The petition to open averred, inter alia: "3. On November 2, 1953, judgment was entered D.S.B. against petitioners [defendants] upon a judgment note issued October 31, 1952 by Charles Spivak and Company, a partnership then existing, through Andrew Kuzneski, partner. 4. ... The said potatoes were purchased upon sample and upon the express representation given petitioners by plaintiff that ... [they] were merchantable, ... and containing less than one percent unmerchantable potatoes ... 5. ... petitioners, through Andrew Kuzneski, ... did execute the said judgment note ... petitioners would not have executed the said judgment note or delivered same to plaintiff, except for their complete reliance upon the said representations ... 6. ... over seventy-five percent of the said potatoes

[ 383 Pa. Page 362]

    were ... unmerchantable ... 7. Plaintiff well knew at the time of his said representations ... that [they] ... were ... unmerchantable." (Italics supplied). It also averred that the sale had been made upon an oral contract.

The petition was sworn to by both partners. Plaintiff filed an answer making proper denials and also pleading the written contract - the bill of sale heretofore mentioned.

Depositions taken on January 30, 1954, were offered in evidence at hearing held on February 2, 1954, at which time additional testimony was taken. Plaintiff objected throughout to all parol evidence tending to vary the terms of the written contract, but it was received subject to further ruling thereon by the court. Subsequently, on May 3, 1954 - the date fixed for argument on the record - defendants asked leave to amend their petition and plaintiff filed answer to the rule issued thereon. Not until May 3, 1954, was Kuzneski's authority to execute the warrant of attorney denied. On July 23, 1954, an amended petition to open, sworn to by Spevack only, was filed. This averred that Kuzneski had executed the note without authority to bind the partnership by the warrant of attorney. Plaintiff having filed answer, further hearing was had on November 17, 1954, to determine whether filing of the amended petition should be permitted, and whether, if filed, judgment should be opened on those grounds. The court discharged the rule; hence this appeal.

Whether or not a judgment should be opened is within the sound discretion of the court; and its action will not be reversed on appeal unless an abuse of that discretion appears: Deviney v. Lynch, 372 Pa. 570, 574, 94 A.2d 578.

An examination of the testimony, as well as the pleadings in this case, leaves no doubt that the sale

[ 383 Pa. Page 363]

    was upon a written contract, the bill of sale, and that there was nothing to call for any alteration of its terms by oral evidence. "The parol evidence rule ... provides that where parties to an agreement commit their undertakings to a writing with the intention that it shall formally and comprehensively evidence the terms of their agreement, the writing when executed by the parties, cannot thereafter be made subject to parol alteration, contradiction or variance by way of agreements or understandings had prior to or contemporaneously with the execution of the writing ... But, ... evidence of prior or contemporaneous agreements of the parties is admissible to alter, contradict or vary the terms of their writing where the omissions therefrom occurred by reason of either fraud, accident or mistake"; International Milling Company v. Hachmeister, Inc., 380 Pa. 407, 414, 110 A.2d 186.

The evidence here established that in the course of negotiations for purchase, Kuzneski and plaintiff went to the place of storage where Kuzneski saw, and had an opportunity to examine, the potatoes. Plaintiff offered alternatively to grade and bag the potatoes (at a higher price), or to sell them "in place," and Kuzneski chose the latter method. The bill of sale was read, and expressly accepted, by Kuzneski prior to delivery of the note or the ...

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