but merely supplemented what was written. Under 12A P.S. § 2-202(b) such evidence is admissible unless "the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement." In this case, the writing in question was not intended as a complete and exclusive statement of the terms of the agreement, and the evidence was properly admitted.
In Dunn v. Orloff, 420 Pa. 492, 495-496, 218 A. 2d 314, 316 (1966), the Pennsylvania Supreme Court stated: "In 1924, the present statement of the Pennsylvania parol evidence rule was enunciated by this Court in the landmark case of Gianni v. R. Russell & Co., Inc., 281 Pa. 320, 126 A. 791 (1924). In Gianni, it was held that if a written agreement was intended by the parties to encompass the entire understanding between the parties, then evidence of a contrary nature, based upon an oral agreement at the time of the execution of the written agreement, was barred in the absence of fraud, accident or mistake. * * * In Gianni, however, the court provided for an exception by saying: 'The writing must be the entire contract between the parties if 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 . . . it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing' (281 Pa. at 323, 126 A. at 792). From this language has developed an exception to the Rule, i.e. that parol evidence is admissible to explain and supplement a written agreement where such evidence clearly shows that the writing in question was not intended to and did not properly state the entire agreement between the parties. Boyd Estate, [394 Pa. 225, 146 A. 2d 816] supra; Allinger v. Melvin, 315 Pa. 298, 172 A. 712 (1934); Universal Film Exchanges, Inc. v. Viking Theatre Corp., 400 Pa. 27, 161 A. 2d 610 (1960). As stated in Boyd : '. . . the parol evidence rule has never barred the introduction of clear, precise and convincing evidence to show that the party who seeks to enforce the written agreement according to its tenor has admitted and acknowledged that the agreement as written did not express what the parties intended and that what the parties intended was omitted from the written agreement by mistake or accident.' (Emphasis supplied)"
The instant case falls within the exception to the parol evidence rule as stated in Dunn v. Orloff, supra, and elaborated in subsequent cases.
Defendants had the burden of showing by 'clear, precise and convincing' evidence that the written memorandum did not constitute the entire agreement. Coal Operators Casualty Co. v. Charles T. Easterby & Co., Inc., 440 Pa. 218, 224, 269 A. 2d 671 (1970). In the instant case, that burden was met by the admission of Whitesell, an officer of Continental (in whose shoes Plaintiff stands), in his own testimony at trial
that the written bill of sale did not include all the terms of the agreement. Such an admission, without more, brings the case within the exception to the parol evidence rule, Yuhas v. Schmidt, 434 Pa. 447, 456-457, 258 A. 2d 616 (1969), but there was ample evidence
of a "clear, precise and convincing" nature in addition to Whitesell's admission.
Plaintiff also contends that it was error to admit the evidence of Whitesell's agreement to purchase insurance on the Cessna for the benefit of McDermott Brothers because "there was no evidence of the authority of the agent to enter into an agreement." At the time in question, Whitesell was President and the chief executive of Flying W. It is hornbook law that an agent may bind his principal by an act within the scope of his apparent authority with respect to a third party who relies in good faith upon the appearance of authority. Restatement, Second, Agency § 8, Sustrik v. Jones & Laughlin Steel Corp., 189 Pa. Super. 47, 50, 149 A. 2d 498 (1959); Revere Press, Inc. v. Blumberg, 431 Pa. 370, 246 A. 2d 407 (1968); Zager v. Gubernick, 205 Pa. Super. 168, 208 A. 2d 45 (1965). In the Revere case, the Court stated "[persons] with whom the agent deals can reasonably believe that the agent has power to bind his principal if, for instance, the principal knowingly permits the agent to exercise such power or if the principal holds the agent out as possessing such power." 431 Pa. at 375, 246 A. 2d at 410. In the instant case, there was ample evidence to support the conclusion that Whitesell was clothed with apparent authority to enter into a sales agreement with McGee which included the agreement that Continental Aircraft Sales would purchase insurance on the Cessna for the benefit of McDermott Brothers. Whitesell had represented Continental Aircraft Sales in many prior dealings with McGee.
On the sale of the Beechcraft, Whitesell's signature alone appeared on the installment sales contract.
The record is totally devoid of evidence suggesting that Whitesell lacked actual or apparent authority to enter into sales contracts on behalf of Continental Aircraft Sales.
6. Exclusion of French's Statement. At trial, objections were sustained to plaintiff's offer to prove that Allied's employee French believed it was dangerous to land in a crosswind. Plaintiff offered a written statement
of French to show that, as a possessor of land, Allied knew of the existence of a dangerous condition on the land -- a crosswind -- and failed to warn an invitee.
French was not qualified as an expert in aviation; the only foundation for admitting French's opinion concerning crosswinds was testimony that he had had "some pilot training"
and had landed in a crosswind as a student pilot.
Manifestly, this is an insufficient basis for the admission of French's opinion. Moreover, assuming without deciding that a crosswind may be a "dangerous condition on the land" concerning which a possessor of land owes a duty to warn if he knows of its existence, at best French's statements merely carried the implication that he believed it was dangerous to land in a crosswind. French's testimony was that he had suggested that McGee "come out and look at the abandoned U.S. 30" and land on a westerly approach.
Had McGee done so, he would have landed into the wind. French's statement merely indicated an awareness of the increased risks of landing on a roadway other than the one he had suggested to McGee. It tends to prove not that French knew or believed it was dangerous to land on Allied's land, but only that he believed it was dangerous to land -- in a manner in which he had not contemplated McGee would attempt -- in a crosswind on Allied's land.
In view of the lack of foundation for the statement as an expression of expert opinion and its lack of probative value, it was not error to exclude it.
7. Denial of Plaintiff's Instruction on Inference from Allied's Failure to Produce an Available Witness. Plaintiff's seventh assignment of error concerns the denial of the following requested instruction:
"Failure to produce informed and competent witnesses militates strongly against the party having the burden of proof if the record does not indicate the witness is unavailable."
This language was taken from the case Plaintiff cited in support of the point, Bayout v. Bayout, 373 Pa. 549, 96 A. 2d 876 (1953), in which the Plaintiff, "the party having the burden of proof," failed to call an available witness. Since the language of the requested instruction refers to the failure of "the party having the burden of proof" to produce an available witness, it would have been error to give the instruction and thereby imply that the defendants had the burden of proof. Furthermore, the rule of law
plaintiff attempted to invoke is not operative unless the absent witness has peculiar knowledge or means of knowledge rendering his testimony of importance to the party in a position to call him. Fisher v. Philadelphia Rapid Transit Co., 274 Pa. 90, 117 A. 777 (1922). That is not this case. Here the "key witness" who was not called was an office manager who overheard French's end of the telephone conversation with McGee. His testimony would be of minimal importance.
For these reasons, Plaintiff's Motion for a New Trial is denied. This disposition makes it unnecessary to pass upon Plaintiff's contentions that certain of the jury's findings should be preserved at a new trial.
TO THE JURY:
Base your answers to the following questions on a preponderance of the evidence in this case.
Question 1. Was there an explicit agreement between McGee and Continental Aircraft Sales that ownership of the Cessna should pass to Continental prior to January 13, 1966?
Answer "Yes" or "No".