Germantown Dairy Co. v. McCallum , 223 Pa. 554 ( 1909 )

Opinion by

Mr. Justice Stewart,

The plaintiff, a foreign corporation doing business in German-town in this state, by written article of agreement sold to the defendant its business plant consisting exclusively of personal property. It was provided in the agreement that plaintiff would assign and transfer to defendant any unexpired portion of the lease of the premises plaintiff had been occupying in its trade. The action was brought to recover so much of the price as remained unpaid. One of the defenses set up was failure on part of plaintiff to transfer the lease, in consequence of which, the defendant after a short occupancy of the premises was dispossessed by the landlord. In reply, Penrose, the president of the plaintiff company, testified that immediately upon the execution of the contract, while he and the defendant were on their way to obtain the lease and effect a transfer of the same, the latter, having learned from the witness that the dairy company had done no retail and but very little wholesale trade on the.premises, expressed unwillingness to take over the lease, giving as a reason that being engaged in like business at another stand, he could there accommodate himself, and thus avoid the paying of rent; that thereupon, instead of going to the lessor to have the lease assigned, they went directly to the company’s place of business, where all the property included in the contract was delivered over to the defendant, who at once entered into possession of the premises as well. This witness testified that defendant made no request thereafter to have the lease assigned to him, until after a sale of the premises had been made by its lessor and a transfer of the lease had been made impracticable, because of the new landlord’s refusal to assent to the same. The defendant’s testimony was directly to the contrary of all this. We have thus the one question of fact which was submitted to the jury. The finding was in favor of plaintiff’s contention. It is complained on appeal, first, that the court failed to instruct the jury that in order to vary the terms of the contract, the evidence must be clear, and convincing beyond doubt; and that as the only testimony on the point was that of plaintiff’s president and the unqualified denial of defendant, the agreement should be the jury’s guide; and, second, that the alleged waiver being without consideration could not avail plaintiff. As to the first, a sufficient answer would be that it is an incorrect statement of fact. There was testimony in the case supporting and corroborating that of the president of the company. It was for the jury to say what credit they would give it. But it is incorrect in law as well. This was not an attempt to vary or contradict the terms of the written contract. The evidence was not offered to show that the contract did not correctly express what the parties had agreed upon; or a parol contemporaneous agreement modifying it in any way. The purpose was to show a subsequent waiver of a stipulation in the contract which admittedly expressed the common understanding and agreement of the parties. In disposing of a similar complaint in Holloway v. Frick, 149 Pa. 178, where the facts were not unlike those we have here, this court said: “It is claimed that as no fraud or mistake is alleged, it was not competent to vary this contract by parol evidence. The principle, however, has no proper application to the present case. It is always competent for [he parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed, or a new one substituted. And this may be shown by parol, by showing either an express agreement, or actions necessarily involving the alterations.” Where the effort is to contradict the terms of a written contract, the measure of proof is as stated by appellant; but where it goes no further than to show a subsequent modification, or waiver of something provided for in the contract, while the burden is upon the party asserting the change, all that is required is that the evidence in support of the claim should be convincing to the jury.

Nor is the question of consideration for the waiver in the case. No express release from covenant obligation was asserted. The plaintiff’s contention was that his readiness and offer to perform h'is obligation were met with defendant’s positive refusal to accept; that he had a right to rely on what defendant said as to Ms unwillingness to take over the release; that relying on it, he made no effort to transfer the lease; and that later on when defendant requested a transfer, it was out of plaintiff’s control, through no default of his. The jury found this to be a true statement of the facts. That they are •sufficient in equity to estop the defendant from assertmg plaintiff’s failure to assign the lease as a defense to an action for the purchase money, is beyond question.

In the aspect it is now’ presented the question asked by the defendant, when testifying in his own behalf as to how the premises owned by him compared in the matter of convenience and Ideation with those under lease to the plaintiff, was entirely proper. The purpose, it now seems, was to show that the latter had important advantages over the former; with a view to derive from such fact an inference in support of defendant’s denial that he had waived a transfer of the lease, and correspondingly prejudicial to the testimony of the plaintiff’s chief witness. But why was not this purpose disclosed when the question was objected to on the trial? The relevancy of the question as it was there put, could not have been at once apparent. It is always the duty of the party making an offer, when its admissibility is challenged, to state the purpose in such manner that the court may perceive its relevancy: Piper v. White, 56 Pa. 90. Had this been done here, doubtless the question would have been allowed; for the court had previously permitted defendant to testify fully with respect to situation and convenience of the several premises, not by way of comparison, but by giving separate description of each. With this information before the jury, we do not see that the defendant was prejudiced to any serious degree by the court’s action in sustaining the objection to this particular question. The argument addressed to us as to its relevancy should have been addressed to the court below, and not quite so much reliance placed on a mere exception to a ruling, the correctness of which was made to depend on an undisclosed purpose.

The plamtiff company produced on the trial a certificate of its registration in this state as a foreign corporation domg business here. The certificate set out the company’s place of business in the state, and the appointment of John C. Nolan as its authorized agent in charge of the company’s business upon whom process might be served. It appeared that some weeks before the contract of sale was entered into between the plaintiff company and the defendant, Penrose, who was president, had acquired all outstanding stock of the company, including that held by Nolan. This left Nolan, who had been secretary and treasurer from the beginning, without active duties, and while he did not resign his office, he thereafter absented himself from the company’s place of business. It was insisted in the court below, and is here urged, that this left the company without an authorized agent in charge of its business upon whom process could be served, and that therefore the contract between these parties cannot be enforced. But, as this court found occasion to say in the case of De La Yergne Refrigerating Machine Company v. Kolischer, 214 Pa. 400, speaking through Mr. Justice Elkin, it is not a requirement of the Act of April 22,1874, P. L. 108, relating to foreign corporations, that the registered agent of the corporation shall stand in any other relation to it than its agent upon whom process may be served. Notwithstanding Nolan had parted with his interest in the company, or for that matter, had withdrawn or resigned from his place as secretary and treasurer, he remained the agent of the company for the purposes of process, and process served upon him as such agent would have been legal and valid as binding upon the company. In the case referred to it is said, “To sustain the contention of appellant in this respect, it would be necessary to hold that a foreign corporation must not only have a place of business and an authorized registered agent, but to make the service of process legal and the business lawful, the registered agent must be physically present in the place of business when the process is served or the details of the business transacted. Such a construction of the act is not only unnecessary to effectuate its purpose, but would surround it with restrictions and limitations never intended.” This answers every objection raised here, and no further comment is required.

The assignments of error are overruled and judgment affirmed.