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MCCUNE v. GROSS (05/24/54)

May 24, 1954

MCCUNE
v.
GROSS, APPELLANT



Appeal, No. 76, March T., 1954, from order of Court of Common Pleas of Washington County, August T., 1953, No. 493, in case of William McCune v. Joseph E. Gross et ux. Order affirmed.

COUNSEL

Lloyd W. Woodward, for appellants.

Barron P. McCune, with him McCune and Greenlee, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.

Author: Bell

[ 377 Pa. Page 361]

OPINION BY MR. JUSTICE BELL

This is an appeal from an Order dismissing a petition to open a judgment.

Defendants executed a bond and mortgage dated June 12, 1951, in the amount of $6,000. with interest. The mortgage was duly recorded, and contained the usual clauses relating to payment of interest, principal, taxes and insurance. The obligees and mortgagees were McCune and Dolley. The latter assigned his interest to McCune and the assignment was duly recorded. Interest was paid on the mortgage until June 12, 1953, when the principal became due, at which

[ 377 Pa. Page 362]

    time neither it nor the interest thereon was paid by defendants. Thereafter, on July 29, 1953, McCune, pursuant to a warrant of attorney, caused judgment to be entered on the bond. On August 31, 1953, the defendants presented a petition to open the judgment, averring that a collateral written agreement dated June 12, 1951, was entered into between Dolley and Joseph Gross whereby Gross should strip mine the coal for two years, during which time Dolley would pay him $2.75 per ton on the 15th day of each month. It further provided that Gross, together with his wife, would execute a mortgage wherein they are the mortgagors and Dolley and McCune are the mortgagees in the amount of $6,000., payable within two years; and this would be reduced and paid off by crediting 50› per ton of the $2.75 per ton payable as aforesaid. Further that the mortgage would be given as security to Dolley for satisfactory performance by Gross; that Dolley breached the contract, which was thereafter cancelled and a new lease agreement for shovel, dozer and equipment was entered into between Dolley and Gross.

It will be immediately noted that neither the mortgage nor the bond referred to any contemporaneous or collateral agreement involving the parties; and that neither McCune nor Mrs. Gross were parties to either of the aforesaid agreements between Gross and Dolley. Joseph Gross averred a breach of both agreements by Dolley and counterclaimed for $18,000. The defendants then averred that they "are informed and believe and, therefore, aver that the said John Dolley and William McCune... were partners on the venture set forth in the attached contract."

McCune filed an answer in which he denied that he was at any time a partner of Dolley; denied that he had any knowledge ...


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