Appeal, No. 73, Oct. T., 1960, from judgment of Court of Common Pleas of Lancaster County, Nov. T., 1957, No. 5, in case of Alexander Haagen and Charlotte Haagen, co-partners doing business as Associated Advertisers, successors to U.S. Buyers' Report, Inc., v. Russell A. Patton. Judgment affirmed.
Marshall M. Cohen, for appellant.
Robert L. Pfannebecker, with him Jacques H. Geisenberger, and Jacques H. Geisenberger, Jr., for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 193 Pa. Super. Page 188]
This matter had its inception in an assumpsit action instituted before an alderman in Lancaster County. The plaintiffs, Alexander Haagen and Charlotte Haagen, co-partners doing business as Associated Advertisers, successors to U.S. Buyers' Report, Inc., sought to recover from Russell A. Patton the sum of $275.00, plus a reasonable attorney's fee, alleged to be due under a written "Service Agreement". The alderman entered judgment for the plaintiffs. Upon appeal to the court of common pleas, arbitrators were appointed who also found for the plaintiffs. Following an appeal from the award of the arbitrators, the case was tried before President Judge WISSLER and a jury. At the direction of the court, the jury returned a verdict for the plaintiffs. Upon defendant's motion, a rule was issued to show cause why a new trial should not be granted. This rule was subsequently discharged, and judgment was entered on the verdict. The defendant has appealed.
The agreement signed by appellant on June 26, 1956, and accepted by plaintiffs on June 27, 1956, appears in the form of a letter addressed to U.S. Buyers' Reports, Inc., and is set forth in the footnote.*fn1 Appellant defended
[ 193 Pa. Super. Page 189]
on the ground that the agreement actually negotiated had attached thereto a written addendum in his own handwriting stating that a sale must be consummated by August 15, 1956. The plaintiffs denied that there was any such addendum. The lower court rejected appellant's offer to prove the contents of the purported addendum by his oral testimony.
[ 193 Pa. Super. Page 190]
Appellant's statement of the questions involved on this appeal is as follows: "1. Where a written contract for the sale of a business is entered into, which said contract has no provision as to its duration, can the owner prove that simultaneous with the signing of the contract he added, by mutual consent, a written Addendum which he attached to the contract averring that the sale must be completed by a certain date or be null and void? 2. Where a verdict in the Court below, if allowed to stand, would result in a swindle, can the Appellate Court reverse the lower Court on the grounds of public policy although the question wasn't raised in the Court below".
(1) Notwithstanding appellant's assertion, the service agreement under consideration was not a "contract for the sale of a business". Paragraphs 4 and 5 thereof expressly indicate the contrary. Appellant proposed to testify that the exhibit offered in evidence was not the entire contract because it did not contain the purported addendum. This proposal flatly contradicted paragraph 7 of the agreement. Furthermore, appellant made no effort to account for the non-production of the addendum. He did not possess a copy, did not seek production of the original, and did not attempt to subpoena the agent of plaintiffs to whom he allegedly gave possession thereof. Not only did plaintiffs' witness testify that there was no such addendum, but also the exhibit in the record, which appellant admittedly signed, gives no indication that any other writing had been attached thereto. In 14 P.L.E., Evidence, section 111, discussing the best evidence rule, it is said: "Under it, when the contents of a ...