Philadelphia Motor Speedway Ass'n v. Paulson , 69 Pa. Super. 338 ( 1918 )

Opinion by

Henderson, J.,

The defendant signed the agreement to pay $250 for a life membership in the Philadelphia Motor Speedway Association as set forth in the statement of claim. It contains the following provision: “There is no understanding or agreement between myself and the association except as provided herein.” He now defends against the payment of the balance due on his contract on the ground that there was fraud or misrepresentation in two respects: (a) that plaintiff was an association primarily for profit; (b) that defendant would obtain equal rights and privileges with other members. It may be said generally that there is no allegation in the answer of a representation made by any officer or agent of the plaintiff with respect to the character of the association or the rights or privileges to be acquired by a person becoming a member thereof. It is not asserted that any one alleged that the plaintiff was an association “primarily for profit” nor that the defendant would obtain equal rights and privileges with other members. The defendant took an assignment of an option held by one Kyle for a membership in the association and was nominated by Kyle for membership therein. It goes without saying that if the latter made any statements to the defendant with respect to the character of the association or rights or privileges therein the plaintiff is not bound by such statement. The contract on which the action is based was directly between the defendant and the plaintiff. It was in writing and the defendant is presumed to have understood its terms. If it be intended to alter or avoid the contract on account of a contemporaneous agreement the answer should have asserted why this agreement was omitted from the contract and this was not done. Besides, the contract expressly declares that the writing signed by the defendant contains the only understanding and agreement between him and the plaintiff. The case is, therefore, clearly within the ruling in Tranter Mfg. Co. v. Blaney, 61 Pa. Superior Ct. 379.

The averment that the plaintiff’s agreement was with the “Philadelphia Motor Speedway Association,” and that the action is by the “Philadelphia Motor Speedway Association, a Corporation,” is without weight. The words, “A corporation” are only descriptive of the character of the plaintiff and might have been omitted. The defendant does not allege that the plaintiff is not the association with which he contracted. The title is amendable and may be considered amended. He does say in an argumentative way that “it is not incorporated for profit or registered at Harrisburg in the auditor general’s department in accordance with the laws and regulations in such cases made and provided.” What was intended to be implied in this is not clear but the statement is so vague as to be valueless as an averment. Of like inconsequence is the allegation that “there has not been and is not now such a corporation as the plaintiff in existence that could lawfully and without fraud make a distribution of 'pro rata share of all profits’ as promised in said application and agreement and the defendant further alleges that Philadelphia Motor Speedway Association has not been incorporated under the laws of Pennsylvania or elsewhere allowing the distribution of ‘pro rata share or profits’ and therefore denies the existence of any such corporation.” The respect in which it was not so incorporated as to permit it to distribute profits is not suggested and if, as alleged by the defendant the association is not a corporation it is of no impor-. tance. The answer is evasive, vague and wholly insufficient. The court below very properly, therefore, entered judgment in favor of the plaintiff.

Judgment affirmed.