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March 24, 1960


Appeal, No. 282, Oct. T., 1959, from judgment of Municipal Court of Philadelphia County, Oct. T., 1957, No. 2328, in case of James E. Kirk et ux. v. Brentwood Manor Homes, Inc. et al. Judgment reversed.


Daniel Marcu, with him Marcu, Marcu and Marcu, for appellants.

Edward E. Dicker, for appellees.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Wright

[ 191 Pa. Super. Page 490]


On June 27, 1956, James E. Kirk and Helen C. Kirk, his wife, filed a complaint in assumpsit against Brentwood Manor Homes, corporate defendant, and Murray G. Isard, individual defendant, to recover the total sum of $3,383.35 on an alleged oral contract. After defendants' preliminary objections were overruled and plaintiffs' motion for judgment on the pleadings was dismissed, the case was tried in the Municipal Court before Judge O'DONNELL without a jury. At the conclusion of plaintiffs' evidence, the trial judge granted defendants' motion for a compulsory non-suit. The court en banc subsequently refused to remove the non-suit, and in effect entered judgment for the defendants. Plaintiffs have appealed.

The record discloses that appellants entered into a written agreement under seal to purchase a dwelling being erected by Brentwood Manor Homes, Inc., hereinafter referred to as Brentwood, for the sum of $25,640.00, and paid a deposit of $2,500.00. Appellants alleged that Murray G. Isard, President of Brentwood, was the real owner, and that Brentwood was merely a straw party. Appellants expended $532.05 for extra work, and paid for the installation of a dishwasher in the sum of $351.00. Appellants subsequently informed Isard that they could not go through with the

[ 191 Pa. Super. Page 491]

    settlement and asked that the deposit be returned. Isard suggested that appellants consummate the settlement and resell the dwelling themselves. Appellants then raised the point that this would involve double settlement charges, transfer taxes, and real estate commissions. Isard "agreed to that, said yes, that was true". He further stated, "I don't think we will have any trouble reselling it", and "said they would go ahead and resell it, and he told me that if there were any expenses involved in reselling that property, they would take it out, and they would refund the balance of the money". Appellants offered to prove that the dwelling was thereafter sold to Leopold and Ruth Fuchs for an amount in excess of $25,640.00. The court below was of the opinion that there was no enforceable contract because the arrangement (1) was too vague and indefinite, and (2) lacked consideration.

In reviewing the entry or removal of a compulsory non-suit, the plaintiff must be given the benefit of all the favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in his favor: Seburn v. Luzerne and Carbon County Motor Transit Co., 394 Pa. 577, 148 A.2d 534. It is also settled law that a non-suit should be entered only in a clear case: Kallman v. Triangle Hotel Co., 357 Pa. 39, 52 A.2d 900; Smith v. Farver, 173 Pa. Superior Ct. 391, 98 A.2d 247. These well established rules were most recently restated in Freund v. Huster, 397 Pa. 652, 156 A.2d 534. Having examined this original record in the light of the foregoing principles, we have concluded that the court below erred in refusing to remove the non-suit.

The parties to an agreement may always rescind or abandon it: Fritz v. Lyons, 185 Pa. Superior Ct. 549, 138 A.2d 182. "It is clearly settled that parties who have undertaken contractual obligations by an agreement under seal, may nevertheless enter into a new

[ 191 Pa. Super. Page 492]

    parol agreement creating obligations separate from the old ones and at variance with them, and such new agreement will be binding": Myers v. Ohio-Penn Gas & Oil Co., 294 Pa. 212, 144 A. 93. Even where the written contract prohibits a non-written modification, it may be modified by subsequent oral agreement: Wagner v. Graziano Construction Co., 390 Pa. 445, 136 A.2d 82. A contract in writing for the purchase of land may be rescinded by parol, or by such conduct of the parties as clearly shows an intention to rescind: Brownfield's Executors v. Brownfield, 151 Pa. 565, 25 A. 92. See also Muchow v. Schaffner, 180 Pa. Superior Ct. 413, 119 A.2d 568; Priester v. Milleman, 161 Pa. Superior Ct. 507, 55 A.2d 540. The agreement to rescind a written contract need not be expressed in words, but may be inferred from the acts and declarations of the parties: Weldon and Kelly Co. v. Pavia Co., 354 Pa. 75, 46 A.2d 466. All that is necessary is a mutual agreement: Roberts Estate, 380 Pa. 600, 112 A.2d 394. Whether or not the parties have so agreed is a question of intention, and the existence of such intention is ordinarily an issue for the jury: Richardson v. Moyer, 155 Pa. 174, 26 A. 21. And see Arcuri v. Weiss, 190 Pa. Superior Ct. 562, 155 A.2d 475.

It is of course true that, in order for a contract to be enforceable, the agreement of the parties must be sufficiently definite that their intention may be ascertained to a reasonable degree of certainty: Seiss v. McClintic-Marshall Corp., 324 Pa. 201, 188 A. 109. However, "the law does not require the impossible or impracticable of those who enter into business agreements or transactions; and it is therefore well settled that the terms of a contract need not be expressed with exactness but only with reasonable certainty".*fn1 In Rossmassler

[ 191 Pa. Super. Page 493]

    and one side has performed much more than the other; or that there has been a partial breach of contract. Adequacy of consideration is immaterial (sec. 81). Therefore, since each party surrenders something which he might have retained, the agreement to rescind is effectual". In Allardice v. McCain, 375 Pa. 528, 101 A.2d 385, this section of the Restatement was recognized as an accurate expression of the law in this Commonwealth.

In Flegal v. Hoover, 156 Pa. 276, 27 A. 162, our Supreme Court said (italics supplied): "The parties to a contract may at any time rescind it, either in whole or in part, by mutual consent, and the surrender of their mutual rights is sufficient consideration". See also McNamara v. Uniflow Manufacturing Co., 354 Pa. 174, 47 A.2d 133; Gibson v. Stainless Steel Sales Corp., 166 Pa. Superior Ct. 300, 70 A.2d 861; Rothstein v. Jefferson Ice Manufacturing Co., 137 Pa. Superior Ct. 298, 9 A.2d 149. The mutual unexecuted undertakings of an existing contract are a sufficient consideration for cancellation of such contract and the substitution of a new one with different terms: Himeles v. Rose, 84 Pa. Superior Ct. 363. And see Cheponis' Estate, 148 Pa. Superior Ct. 515, 25 A.2d 779. In the case at bar, the mutual consent to rescind the agreement of sale, with the consequent surrender by appellees of the right to assert a forfeiture, and the surrender by appellants of the right to take title to the property, constituted sufficient consideration for the alleged oral contract.


The judgment of non-suit is reversed with a procedendo.

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