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NISSENBAUM v. FARLEY (01/03/55)

January 3, 1955

NISSENBAUM, APPELLANT,
v.
FARLEY, APPELLANT.



Appeals, Nos. 176, 177 and 191, Jan. T., 1954, from orders of Court of Common Pleas No. 5 of Philadelphia County, September T., 1952, No. 4146, in cases of American Discount Company v. Andrew Farley; and Samuel C. Nissenbaum, Trading as American Discount Company v. Same. Order discharging plaintiff's rule to allow execution to issue reversed; order making absolute defendant's rule to open affirmed.

COUNSEL

M. E. Maurer and Irving J. Katz, for plaintiff, appellant.

Maxwell Pestcoe, with him Benjamin L. Long, for defendant, appellant.

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

Author: Chidsey

[ 380 Pa. Page 259]

OPINION BY MR. JUSTICE CHIDSEY

These are appeals from two orders of the Court of Common Pleas of Philadelphia County making absolute defendant's rule to open a judgment with the issue limited to ascertainment of the proper amount thereof, and discharging plaintiff's rule to allow execution on so much of the judgment allegedly admitted to be due.

On September 17, 1952, a chattel mortgage, postdated to September 22, 1952, covering certain grocery store equipment and fixtures was executed by the defendant, Andrew Farley, as mortgagor in favor of the plaintiff, Samuel C. Nissenbaum, trading as American Discount Company, as mortgagee. The bond accompanying the mortgage contained the customary clause that the unpaid balance of the purchase price would become due upon any default in the payment of principal or interest. Contemporaneous with this transaction the plaintiff signed and delivered to the defendant two letters in which he obligated himself to clean and test this equipment and also replace any missing items. The mortgage was postdated because the defendant had entered into articles or agreement to buy the premises where the equipment and fixtures were located, sometime prior to September 17, 1952 and settlement was not to be made until September 22, 1952.

Defendant having defaulted on the initial payment, the plaintiff on October 28, 1952 entered judgment by confession pursuant to a warrant of attorney contained in the bond. After execution issued but prior to the sheriff's sale, the defendant presented a petition to open the judgment. The court issued a rule to show cause why the judgment should not be opened and defendant let into a defense, and stayed the proceedings. Depositions were taken by both parties and subsequently

[ 380 Pa. Page 260]

    the chancellor filed an opinion in which he sustained the validity of the judgment but nevertheless opened it for the limited purpose of determining damages on the ground that there appeared to be a mutual mistake in the preparation of the bond and mortgage with respect to the purchase price. Shortly thereafter the plaintiff filed a petition for a rule to show cause why execution should not issue in the sum of $4,500 since defendant admitted that this amount was due. This rule was discharged on the ground that the order opening the judgment did not foreclose the question of the face amount of the judgment. From the orders thereupon entered both parties have appealed.

Plaintiff (appellant in Appeals No. 176, 177) urges that the court below erred in opening the judgment for the purpose of ascertaining damages on the ground of mutual mistake and secondly that, in any event, it was error not to permit the plaintiff to proceed with execution on the amount of the judgment admitted to be due. In his petition to open the judgment defendant averred that the plaintiff undertook to sell the equipment for $4,500 with interest for five years. The plaintiff answered denying that there was any interest charge for five years or any other period, since no loan was made to the defendant. The chattel mortgage which was appended to the answer sets forth the price of the equipment as $5,673, payable in 56 monthly installments of $100 each and a final installment of $73. The bond states that the principal sum is $5,673 together with interest thereon, payable $25 weekly at the rate of 6 per cent. per annum. In his ...


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