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NADOLNY v. SCORATOW. (11/12/63)

November 12, 1963

NADOLNY, APPELLANT,
v.
SCORATOW.



Appeal, No. 124, March T., 1963, from order of Court of Common Pleas of Allegheny County, April T., 1961, No. D.S.B. 4117, in case of Merle J. Nadolny and Hermine Nadolny, his wife, v. Marco Scoratow. Order affirmed.

COUNSEL

Reuben Fingold, with him Fingold & Fingold, for appellants.

Allen S. Gordon, for appellee.

Before Musmanno, Jones, Cohen, Eagen and Roberts, JJ.

Author: Cohen

[ 412 Pa. Page 489]

OPINION BY MR. JUSTICE COHEN

The parties to this appeal entered into an agreement whereby appellants leased certain premises to appellee for a term extending from July 1, 1960 to April 30, 1961. The premises which consisted of a two-story building were used by appellee for the storage of pre-cast stone. In December 1960, the second floor of the building buckled because it was unable to support the weight of the stored material.*fn1 As a result, appellee abandoned the premises in Junuary 1961. Thereupon, in accordance with the lease agreement, an amicable confession of judgment was entered in favor of appellants in the amount of $11,261.06. In addition to unpaid rents, this amount included the sum of $10,201, the alleged damage to the second floor caused by appellee's overloading of the building in violation of his covenant to maintain the premises in good order and to surrender them in the same condition as when they were leased. Appellee's petition to open judgment

[ 412 Pa. Page 490]

    was granted by the court below and this appeal followed.

In his petition to open judgment, appellee alleged that (1) the damage to the premises was due to appellants' misrepresentation that the second floor could support the weight of the pre-cast stone; (2) said misrepresentation also entitled appellee to rescind the lease and avoid liability for the remaining unpaid rent; and (3) even if he were liable for the damage to the premises, the cost of repairing the second floor was considerably less than $10,201.

At the hearing below, appellee offered depositions in support of these allegations. The depositions indicated that Robert Nadolny, appellants' son, had acted as agent for appellants in the negotiation of the lease; that said agent, upon being informed as to the weight of the pre-cast stone, had represented that the premises could support this load; and that the appellee was unable to determine by visual observation the true load capacity of the premises. Appellee also introduced depositions to support his claim as to the cost of repairing the building. Appellants offered no evidence in rebuttal.

In asking us to reverse the order below, appellants set forth four contentions: (1) the parol evidence rule prevents the introduction of evidence regarding the alleged misrepresentation; (2) even if this evidence is admissible, appellee failed to show either the agency of Robert Nadolny or that he made such a representation; (3) even if appellee had the right to rescind the contract and avoid liability for rent, he waived this right by not promptly disaffirming the lease; and (4) appellee's evidence was insufficient to show that the damage to the premises was less than ...


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