Appeal from judgment of Court of Common Pleas of Butler County, Sept. T., 1965, No. 54, in case of Kersey Manufacturing Company v. August Rozic.
William C. Robinson, with him Henninger & Robinson, for appellant.
Harry K. McNamee, with him Marshall, Marshall, McNamee & MacFarlane, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J. Concurring and Dissenting Opinion by Hoffman, J. Jacobs, J., joins in this opinion.
[ 207 Pa. Super. Page 184]
In an assumpsit action instituted by Kersey Manufacturing Company against Albert Rozic, in the Court of Common Pleas of Butler County, the jury returned a verdict in favor of the defendant. From an order of the court below refusing to grant a new trial, the plaintiff appealed to this court. The appeal was quashed as premature because no judgment had been entered. See Kersey Manufacturing Company v. Rozic, 205 Pa. Superior Ct. 551, 211 A.2d 76. Judgment was thereafter entered on the verdict, and this appeal followed.
It is appellant's contention that a new trial should be granted on the grounds that the trial judge erred (1) in permitting the introduction of certain writings and testimony in violation of the parol evidence rule; and (2) in permitting the court crier to transmit instructions to the jury without notice to counsel.
The action was based on a conditional sales contract in writing by which Kersey sold a mine tractor
[ 207 Pa. Super. Page 185]
and other equipment to Rozic. It was Rozic's contention that Kersey had promised him a credit of $3850.00 in exchange for a used locomotive. Although the written contract was silent on this point, it was Rozic's position that, simultaneously with the execution of the contract, he had requested and received a written modification. In support of this contention he offered his letter returning the signed contract, which letter contained the following statement: "As agreed, your driver returned with our locomotive and generator. We are now awaiting the credit for same in the amount of $3850.00, which would help the balance". He also offered Kersey's reply which contained the following statement: "Concerning the credit of $3,850.00 for your Rail Locomotive and Generator we will, as agreed, issue credit when the locomotive and Generator is sold".
We are in accord with the position of the lower court that the admission of these letters, together with testimony concerning the credit in question, did not violate the parol evidence rule. A written agreement may be modified by a subsequent written or oral agreement and this modification may be shown by writings or by words or by conduct or by all three. In such a situation the parol evidence rule is inapplicable: Dora v. Dora, 392 Pa. 433, 141 A.2d 587. See also Consolidated Tile & Slate Co. v. Fox, 410 Pa. 336, 189 A.2d 228; Muchow v. Schaffner, 180 Pa. Superior Ct. 413, 119 A.2d 568. On this question we adopt the following excerpt from the opinion below:
"This rule has no application to the instant case for here the defendant executed the contract and simultaneously asked and received a modification in writing of the contract. The fact that this modification was discussed and negotiated prior to the signing of the contract is immaterial. The ...