Opinion
January 14, 1932.
March 14, 1932.
Ground rent — Arrearages — Erroneous date — Amendment — Extension — Agreement — Evidence — Parol evidence — Parties.
1. In an action for arrearages of ground rent where the statement of claim is erroneous as to a date, such error will be considered amended when the affidavit of defense raises no objection to it, and the correct date readily appears from the other averments of the statement. [354]
2. In such case an alleged agreement by parol evidence to further extend the time of payment of a written agreement of extension, is unavailable because within the parol evidence rule, if the parol agreement is averred to have been contemporaneous with the execution of the written agreement of extension. [354]
3. If it appears that the written extension agreement was a part of the contract sued upon and in no respect collateral to the issue, it cannot be argued that the parol agreement was not the basis of the suit, and therefore could be varied by parol. [354]
4. Nor can it be alleged that the parol rule does not apply where the suit is not between the original parties to the agreement. [354-355]
5. The exception rule applies only where the suit is not between the parties who have put the agreement in writing or those claiming under or through them. [355]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.
Appeal, No. 105, Jan. T., 1932, by defendant, Florence E. Stein, from order of C. P. No. 1, Phila. Co., June T., 1931, No. 367, making absolute rule for judgment for want of sufficient affidavit of defense, in case of the Title Holding Company, assignee of Cypress Realty Co., assignee of Samuel Kadison and Nettie Kadison, his wife, who were the assignees of Louis Winkelman and Eleanor, his wife, and Jules C. Winkelman and Sylvia, his wife, v. Jerome Black, covenantor, Florence E. Stein and Tradesmens National Bank Trust Co., real owners. Affirmed.
Rule for judgment for want of sufficient affidavit of defense. Before KUN, J.
The opinion of the Supreme Court states the facts.
Rule absolute. Florence E. Stein appealed.
Error assigned was order.
Abraham Wernick, for appellants. Henry B. Coxe, Jr., and Ballard, Spahr, Andrews Ingersoll, for appellee, were not heard.
Argued January 14, 1932.
Defendant, Florence E. Stein, appeals from a judgment of the Court of Common Pleas of Philadelphia County, entered upon a rule for judgment against her for want of a sufficient affidavit of defense. The action was assumpsit to recover the principal and arrearage of a ground rent. By the statement of claim it was alleged that the principal amount of the ground rent fell due on April 1, 1930. (The original statement contained a typographical error as to this date, which the court below treated as properly amended, since the point was not raised in the affidavit of defense and the correct date readily appeared from other averments of the pleadings.) It was further alleged that an extension agreement had been executed, extending the time for payment for one year from the due date. The main defense relied upon by appellant was a parol agreement to extend the time of payment of the ground rent principal until such time as the owner of the premises or the mortgagee thereof "would be able to raise sufficient money to refinance." This oral agreement was alleged to have been made contemporaneously with the execution of the extension agreement. As such it is clearly unavailable because within the parol evidence rule: Gianni v. Russel, 281 Pa. 320.
Appellant also argued that the alleged oral agreement comes within two exceptions of the parol evidence rule; first, that it referred to a collateral agreement, not the basis of the suit, and therefore could be varied by parol. This is without merit, for the written extension agreement is part of the contract sued upon and in no respect collateral to the issue. The second exception, of which appellant claims the benefit, is stated to hold that the parol evidence rule does not apply where the suit is not between the original parties to the agreement. But in the case of Roberts v. Cauffiel, 283 Pa. 64, which appellant cites in support of her contention, we laid down the rule — page 68 — that the exception applies only where the suit is not between the parties who have put their agreement into writing or those claiming under or through them.
The other defenses raised by appellant are completely answered by the opinion of the court below and will not be discussed here.
The judgment is affirmed at the costs of appellant.