Appeal, No. 154, Jan. T., 1952, from judgment of Court of Common Pleas No. 7 of Philadelphia County, June T., 1949, No. 5737, in case of Eastern Wood Products Company v. Benjamin Metz. Judgment affirmed; reargument refused June 24, 1952.
David Freeman, for appellant.
Walter Stein, with him William A. Gray and Gray, Anderson, Schaffer & Rome, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Eastern Wood Products Company sued Benjamin Metz in assumpsit on an alleged promise by the defendant to pay a balance of indebtedness amounting to $2,435.07 due plaintiff by Dickstein Flooring Company. The case was tried without a jury and the trial judge found in favor of plaintiff in the amount of $3,342.12, being the full amount of plaintiff's claim with interest. Defendant filed exceptions which were dismissed and this appeal is from the judgment entered.
On May 6, 1941 Dickstein Flooring Company was indebted to plaintiff on an open book account in the sum of $4,678.20. Payments on account were made totaling $2,243.13, leaving a balance due as of March 1, 1945 of $2,435.07. In the early part of March, 1945 defendant who at the time owned all of the stock of Dickstein Company, met with Julius Herz, president of plaintiff company, to talk about the account. Plaintiff claimed and the court found that at this meeting Herz
wanted to start bankruptcy proceedings against the Dickstein Company in order to salvage the debt and that defendant agreed to pay the debt personally if Herz refrained from undertaking such proceedings. The court also found that at the same time defendant asked Herz to make some additional flooring for the Dickstein Company which Herz agreed to do. Herz refrained from instituting bankruptcy proceedings and did not try to collect the balance of the account; he manufactured the flooring but did not deliver it.
Following this interview defendant wrote a letter to plaintiff, dated March 10, 1945, in which he said: "... my purpose in writing this letter is to assure you that I will pay you every cent that the Dickstein Flooring Co. owes you. It might take me a year to pay you but I give you my word that I will pay it. I am making arrangements with my insurance Co., whereby I will assign you a sum of money due you so that if I die before I finish paying you my estate will pay you...".
The court held that the forebearance by plaintiff in not instituting proceedings was consideration for defendant's promise and also held that the letter above referred to amounted to a statement by the defendant that he intended to be legally bound so as to make the defendant's promise to pay enforceable without consideration under the Uniform Written Obligations Act of 1927.*fn1 Defendant's contentions here are (1) that ...