Appeal, No. 32, March T., 1952, from order of Court of Common Pleas of Washington County, Feb. T., 1950, No. 402, D.S.B., and No. 52, E.D., in case of Charles P. Yezbak et ux. v. Louis Croce et ux. and Reuben F. Lowe et ux. Order reversed.
David H. Weiner, with him Wade K. Newell, for appellants.
Jonathan Allison, with him Schmidt & Allison, for appellees.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On June 2, 1947, Charles P. Yezbak and his wife, Catherine Yezbak, received from Louis Croce and Reuben F. Lowe and their respective wives, the sum of $10,000 as down payment on the sale of two lots and a scrap yard, the total selling price being $19,000 and the balance of the purchase price being secured by a purchase money mortgage in the sum of $9,000.
The terms of the mortgage provided that the purchasers were to pay $1,000 for each of the first three months, and $100 with interest each month thereafter. By agreement dated July 12, 1948, Louis Croce and his wife purchased the interest of Reuben F. Lowe and his wife.
On January 26, 1950, the Yezbaks entered judgment on the bond accompanying the mortgage and a writ of fieri facias issued for $3,300 with interest and attorney's commission. The Croces obtained in the Court of Common Pleas of Washington County a rule on the Yezbaks to show cause why the judgment should not be opened. A hearing was held before a commissioner and the matter was subsequently heard before a court en banc. On the refusal of the court en banc to open the judgment, an appeal was taken to this Court.
At the commissioner's hearing, Louis Croce testified that on or about June 5, 1947, he and Charles P. Yezbak entered into an oral agreement, the purpose of which was to insure the mortgage payments, the terms being that Croce would ship scrap iron to Yezbak's account through a broker, and Yezbak would pay the market price for such shipments. In pursuance of this agreement he shipped 19 cars of scrap and rubber on Yezbak's account through Max Solomon & Company, a broker. On August 15, 1947, Yezbak had credited $3,025 from the sale of scrap iron to the three $1,000 payments due for the first three months and he issued and signed an appropriate receipt. Croce contends that there is still due and owing to him $2,748.09, plus interest, which amount should be credited to the mortgage. Yezbak admitted owing Croce $826.41 from scrap dealings but denied that the arrangements as to the shipping of scrap were made for the purpose of securing the mortgage payments. On this point Yezbak testified: "Well, before -- when I sold them the place, or
before I sold it, they agreed to sell me all their scrap. There was quite a bit of scrap iron in the yard at the time and we set a price on it and they were to sell it to me until and their debts were paid, and I gave them a figure on it and they wanted to know if there was any protection in case scrap ...