Appeals, Nos. 63 and 65, March T., 1951, from order of Court of Common Pleas of Beaver County, June T., 1948, Nos. 56 and 393, in case of Housing Mortgage Corporation v. Allied Construction Company, Inc., et al. Record remanded with instructions.
W. Denning Stewart, with him Ira Hurwick and Harold L. Roth, for plaintiff.
Myron E. Rowley, with him James E. Hindman, Ralph E. Smith and Rowley & Smith, for defendant.
Before Drew, C.j., Stern, Jones, Bell, Ladner and Chidsey, JJ.
This appeal involves two questions: The first is whether an agreement governing the advances to be made by the advance money mortgagee and incorporated in the advance money mortgage by reference is also incorporated in the subordinated purchase money mortgage by the reference therein to the advance money mortgage to which it was subordinated.
The second question is whether in fact the advance money mortgagee substantially complied with the schedule. Counsel for that mortgagee earnestly argued that there were no excessive or over advances actually made.
The first question is an exceedingly nice one but, though interesting, it would not be decisive unless the second question were decided in the appellants' favor. If in fact there were no excessive advances made and the schedule was substantially complied with, that would be the end of the case irrespective of our finding on the first question. We cannot, however, pass on this second question because neither the auditor nor the learned court below made any finding on this question. We see no reason to decide the case piecemeal. In the circumstances we will remand the record to the court below with instructions to reopen the proceedings and refer the matter back to the auditor for further findings on that question and from the action of the court below upon the further report of the auditor; a new appeal may be taken according to law raising both questions.
Appeal No. 63 remanded, costs to abide the event.
Appeal No. 65 dismissed without prejudice.
Appeal No. 63 remanded, costs to abide ...