Appeals, Nos. 266 and 267, Jan. T., 1951, from order of Court of Common Pleas of Luzerne County, July T., 1949, No. 505, in case of Celia Harrison v. Anna Stoeckert et vir. Order affirmed.
Thomas C. Moore, with him John R. Verbalis, for appellants.
Louis Shaffer, for appellee.
Before Drew, C.j., Stern, Stearne, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
These are appeals by joint defendants, husband and wife, from an order of the Court of Common Pleas of
Luzerne County discharging a rule to open judgment entered on the bond accompanying a mortgage.
Defendants had executed this mortgage in favor of plaintiff Celia Harrison, daughter of Hyman Landau, in the amount of $24,000 on January 23, 1947. They received and applied the consideration as follows: (1) $10,250.00 was applied to satisfy a prior mortgage between the same parties on the same premises; (2) $11,136.50 was paid to Landau's, Inc., of which Hyman Landau is president, for jewelry purchased by wife-defendant at various times prior to the date of the mortgage; (3) defendants received $2,209.42 in cash. The transaction was concluded in the office of Louis Shaffer, attorney for Hyman Landau as well as for plaintiff. Payments of principal and interest on the mortgage were made directly by defendants to Hyman Landau. Plaintiff is named mortgagee and the mortgage payment checks were drawn payable to her although delivered to Hyman Landau, but plaintiff has had no other connection with the entire transaction.
In April, 1949, defendants being delinquent on mortgage payments, wife-defendant delivered to Hyman Landau certain jewelry, which she had originally purchased from Landau's, Inc., for the purpose of having Landau sell the jewels and apply the proceeds to payment of the mortgage. There is a conflict of testimony concerning the true value of the jewels and the exact nature of Landau's instructions respecting the manner of sale. Landau says that he sold the jewels for the best possible price, although he received only about one-fourth of the price which defendant had originally paid him for the jewels. Defendants contend that the sales price which Landau reported and credited to them on account of the debt is so inadequate as to reveal either that no sale was ever made or that a sale was made in violation of the agreement
of the parties. Their petition to open judgment concludes with the statement that because of this sale "there is a balance due your petitioners over and above the amount then and now due on said mortgage and bond." The sum credited to payment of the mortgage as a result of the sale of defendant's jewelry was only a small fraction of the indebtedness. When defendants continued to be delinquent, plaintiff entered judgment on defendants' bond on May 17, 1949, and issued execution on December 14, 1950. Defendants thereupon filed their petition to open judgment, ...