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PICCARI v. VARDARO ET AL. (06/15/61)

June 15, 1961

PICCARI
v.
VARDARO ET AL., APPELLANTS.



Appeals, Nos. 91 and 92, Oct. T., 1961, from judgment of Court of Common Pleas No. 1 of Philadelphia County, June T., 1957, No. 175, in case of Leonard Piccari and Anthony Piccari, co-partners trading as Piccari Bros., v. Bruno Vardaro et al. Judgment affirmed; reargument refused June 27, 1961.

COUNSEL

Benjamin A. Katz, for appellants.

Marvin I. Lessin, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Montgomery

[ 195 Pa. Super. Page 558]

OPINION BY MONTGOMERY, J.

These two appeals by Lina G. and Eugene Vardaro, two of the defendants, are form the order of the lower court refusing them a new trial or judgment n.o.v. and entering judgment on the verdict in favor of plaintiffs. The verdict was in favor of the third defendant, Bruno Vardaro, presumedly because he was not an owner.

The action is based on a mechanic's lien filed against property in the City of Philadelphia owned by the two appellants. The lien was filed for a 10% commission claimed by plaintiffs for preparing plans etc., and supervising the construction of a home on appellants' land under an oral contract, allegedly entered into between plaintiffs and all the defendants on or about July 26, 1956. Defendants denied such contract, but admitted that they had discussed the construction of the home with Leonard Piccari, one of the plaintiffs, but only as a long time friend, and not for the purpose of hiring him of his partnership as a general contractor or superintendent. However, at that time the plaintiffs were engaged in the general contracting business, and this was known to the defendants. It is defendants' contention that whatever plaintiff did by way of preparing plans and specifications, staking out the house, advising the defendants on the making of contracts and purchases etc., was done solely for the privilege of getting the contract to supply the lumber and carpentry labor necessary in the completion of that house, but without bidding against other suppliers of

[ 195 Pa. Super. Page 559]

    those items. In August 1956, such contracts for carpentry labor and lumber, in written form, were entered into by plaintiffs and defendants; and the lumber and labor were supplied thereunder for the consideration of $5,015.00 mentioned therein, which sum has been paid to plaintiffs by defendants. Those contracts make no mention of the other services performed or to be performed by the plaintiffs.

The lower court permitted oral testimony to be offered into he record over the objection of the defendants as to the existence of the oral contract of July 26, 1956, and the jury found that such contract had been made. The correctness of that ruling is the major issue in these appeals. It is appellants' contention that the lower court violated the parol evidence rule in admitting such oral testimony and that it thereby permitted the written contracts of August 1956 to be varied without proof of fraud, accident or mistake; citing Gianni v. R. Russell & Co., Inc., 281 Pa. 320, 126 A. 791. The important consideration in the present case is not the rule, but its application. When it is to be applied and followed is stated in the Gianni case as follows (p. 323): "The writing must be the entire contract between the parties of parol evidence is to be excluded and to determine whether it is or not the writing will be looked at and if it appears to be a contract complete within itself 'couched in such terms as import a complete legal obligation without any uncertainly as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing': Seitz v. Brewers' Refrigerating Machine Co., 141 U.S. 510, 517.

"When does the oral agreement come within the field embraced by the written one? This can be answered by comparing the two, and determining whether parties, ...


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