## Facts

- An orthodox rabbi-cantor agreed by written contract to officiate as cantor for six High Holiday services in September 1950 for $1,200.
- The congregation was an incorporated orthodox Jewish congregation whose services, before contracting, followed orthodox practice, including separation of men and women during synagogue services.
- The written contract did not mention the congregation’s orthodox character or any seating arrangement.
- Before the contract, the congregation’s rabbi represented that the congregation conducted services in the orthodox manner and would continue to do so in the new synagogue.
- Shortly after contracting, at a meeting held as the congregation prepared to move into a new synagogue, the congregation adopted a new seating plan allowing mixed seating in part of the sanctuary.
- The cantor, through counsel, notified the congregation that he could not officiate under a mixed-seating policy because it conflicted with orthodox religious requirements.
- The congregation did not reverse its seating decision; the cantor did not perform and obtained only one substitute engagement for $100.
- The cantor sued for the unpaid contract balance of $1,100 as damages.

## Issues

1. Whether established orthodox synagogue practice requiring separate seating was an implied term of the cantorial contract despite the contract’s silence.
2. Whether evidence of pre-contract statements about continuation of orthodox practice was admissible in light of the parol evidence rule.
3. Whether those statements, even if characterized as self-serving, were admissible to show the cantor’s intent and understanding when contracting.

## Decision

- The Superior Court of Pennsylvania affirmed judgment for the cantor for $1,100.
- The court held that the parties contracted with reference to an established usage of orthodox practice, including separate seating, and that this usage became part of the contract absent an express contrary provision.
- The court ruled that the cantor was justified in refusing to perform after the congregation adopted mixed seating and declined to rescind that action.
- The court upheld admission of pre-contract statements as relevant to intent and understanding, not as an impermissible alteration of the written terms.
- The court deferred to the trial court’s fact findings in a nonjury trial where supported by the evidence.

## Legal Principles

- A well-established custom or usage, absent an express contrary agreement, is treated as part of a contract when the parties are presumed to have known of it and contracted with reference to it.
- The parol evidence rule bars varying an integrated writing’s terms, but evidence may be admitted to establish the relevant usage and the context in which the parties dealt when the writing is silent on that point.
- Statements offered to show a party’s intent or state of mind in entering a contract may be admissible even if self-serving, when not offered as independent contractual commitments.
- In a bench trial, the trial court’s findings have the effect of a jury verdict, and the prevailing party receives the benefit of reasonable inferences supporting the judgment on appellate review.

## Conclusion

Because orthodox separate seating was an established practice forming the basis of the parties’ agreement and was implied into the contract, the congregation’s shift to mixed seating materially departed from what the contract contemplated, excusing the cantor’s nonperformance and supporting an award of the unpaid contract amount.


Fisher v. Congregation B’nai Yitzhok, 110 A.2d 881 (Pa. Super. Ct. 1955)