Appeal, No. 252, March T., 1953, from judgment of Court of Common Pleas of Fayette County, March T., 1952, No. 321, in case of John E. Gettier and Basil Rhoades, trading as Gettier Coal Company v. Charles H. Friday, trading as Charles H. Friday Construction Company. Judgment, as modified, affirmed.
Anthony Cavalcante, for appellants.
Paul V. Mahoney and Newcomer & Mahoney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Plaintiffs confessed against the defendant a judgment in the sum of $3,730.61, upon a warrant of attorney contained in an agreement whereby the defendant agreed to mine coal on property leased by the plaintiffs, and to pay certain royalties thereon.
Defendant petitioned to open the judgment, averring that about a month after the agreement and warrant of attorney were signed, and while mining operations were in progress, the parties orally agreed that the defendant should perform other services for the plaintiffs, payments for which were to be credited on the royalty payable under the written contract. Defendant alleged that the amount payable for such additional services was $2,145.83, and asked that this should be allowed as a credit against the amount due the plaintiffs.
Plaintiffs acknowledged the oral agreement for additional services, but alleged that the maximum amount owing therefore was $500.00, which had been offered
but refused by the defendant. Depositions were taken, whereupon the court opened the judgment and plaintiffs appealed, contending: (1) that judgment cannot be opened to permit the defendant to set-off or counterclaim an unliquidated amount, and (2) if opened the judgment must continue in force and effect as to the amount in excess of the counterclaim.
The petition to open judgment is equitable in nature and is addressed to the judicial discretion of the trial court, and its action will not be reversed in the absence of an abuse of discretion: Harrison v. Stoeckert, 369 Pa. 143, 85 A.2d 154. Plaintiffs contend that the lower court has abused its discretion by failing to follow the rule enunciated in prior cases to the effect that the existence of an unliquidated set-off or counter-claim is not ground for opening judgment, and that payment is the only answer to a judgment ripe for execution: Thorp v. Wegefarth, 56 Pa. 82, 85; Harrison v. Stoeckert, supra. The rule so contended for is still the law under such circumstances, but the cases relied upon did not involve a counterclaim having a relationship to the debt upon which judgment was confessed. In Yezbak v. Croce, 370 Pa. 263, 269, 270, 271, 88 A.2d 80, the Court said: "... as early as 1900, in Cooke v. Edwards, 15 Pa. Superior Ct. 412, it was indicated that an exception [to the rule] would lie where the agreement in question provided that the debt sought to be set-off or counter-claimed would be credited on the obligation on which the judgment was entered... The... questions of fact... such as the existence of ...