Opinion
November 22, 1928.
December 13, 1928.
Real Estate — Mortgages — Application to obtain — Duty to pay commissions — Affidavit of defense — Insufficiency.
In an action of assumpsit for commissions for placing a mortgage, the averments of the affidavit of defense purported to contradict the terms of the written contract by the allegation that it only constituted part of the agreement, and that a parol contract modifying it was made sometime prior to the execution of the written instrument. There was no averment that there was omitted from the written agreement any other contract or part of a contract by reason of fraud, accident or mistake, nor was the written agreement ambiguous in any of its terms. It was a plain intelligible and not unusual contract in form, to render a specific service to the defendants, and there was no dispute that the plaintiffs made the arrangement for the loan stated in the agreement.
In such case the affidavit of defense was insufficient and judgment was properly entered for plaintiff.
Appeal No. 350, October T., 1928, by defendants from judgment of Municipal Court of Philadelphia County, May T., 1928, No. 863, in the case of Anna T. Lynch, trading as A.T. Lynch Co., v. John Killeen, Mary Killeen, Appellants.
Before HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Assumpsit for commissions for obtaining a loan. Before KNOWLES, J.
Rule for judgment for want of a sufficient affidavit of defense.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule. Defendant appealed.
Error assigned, among others, was the judgment of the court.
Thomas M.J. Regan, for appellant.
Francis T. Anderson, for appellee.
Argued November 22, 1928.
A judgment was entered against the defendants in the court below for want of a sufficient affidavit of defense. The action was based on an application in writing by the latter for a loan of $12,000 or $12,500 on a first mortgage. The application authorized the plaintiff to obtain such loan, and contained an agreement to pay a commission of one and one-half per cent for services with respect thereto, together with the necessary expenses of the plaintiff involved in the transaction. Pursuant to this authorization the plaintiff obtained a loan of the desired amount to be secured by a first mortgage, and the defendants were promptly notified of that fact. John Killeen, one of the defendants, gave to the plaintiff a written acceptance. The defendants having refused to pay the commission stipulated for, this action was brought. The statement of claim set forth the contract as above recited, performance thereof by the plaintiff, and the default of payment by the defendants, together with a copy of the contract. It is not denied that the defendants signed the application on which the action is based, but the defense is made that the plaintiff agreed to secure two mortgages for the defendants a first mortgage of $12,000 or $12,500 and also a second mortgage for $8,000, and that the agreement attached to the plaintiff's statement of claim was only a part of the contract between the parties, the parol contract having been made sometime before the writing sued on. There is no averment that there was omitted from the written agreement any other contract or part of a contract by reason of fraud, accident or mistake; nor is the written agreement ambiguous in any of its terms. It is a plain intelligible and not unusual contract in form, to render a specific service to the defendants and there is no dispute that the plaintiffs made the arrangement for the loan stated in the agreement.
We regard the law as well established that a contract in writing is presumed to fully express the final undertaking of the parties and that all prior negotiations and understandings are merged therein. The written agreement clearly sets forth that there was to be one first mortgage of the amount stated, and there is no reference to any other agreement. The case is clearly within the decisions in Lowry v. Roy, 238 Pa. 9; Gianni v. R. Russell Co., 281 Pa. 320; Neville v. Kretzschmar, 271 Pa. 222; Wolverine Glass Co. v. Miller, 279 Pa. 138. None of the cases cited by the appellant are inconsistent with the rule above stated.
The opinion of the court below is sustained by the authorities cited, and many others.
The assignments are overruled, and the judgment affirmed.