Appeal, No. 311, Jan. T., 1955, from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1954, No. 3900, in case of Harry T. Dozor v. E.R. Crown Construction Company, Crown Construction Company, Harold J. Lowenthal, E.R. Crown, Morton Robbins. Order affirmed.
Ralph B. Umsted, with him Abraham Nathanson, for appellant.
David N. Rosen, with him Leonard J. Bernstein, for appellees.
Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.
The order entered by the lower Court in this case is affirmed on the following excerpts from the Opinion by Judge SPORKIN:
"On January 10, 1955, plaintiff caused judgment to be entered against defendants on a judgment note in the sum of $15,000, plus five per cent collection fee. On February 11, 1955 two of the defendants, E.R. Crown Construction Company and E.R. Crown, filed a petition and rule to show cause why the judgment should not be opened and the defendants be let into a defense. Plaintiff's preliminary objections to the petition for rule to open judgment having been overruled, plaintiff on April 18, 1955 filed a timely answer to the said petition. Thereafter depositions were taken and testimony introduced by defendants only.
"The following facts contained in the record are not disputed: On April 6, 1954 plaintiff and E.R. Crown Construction Company, one of the defendants, entered
into a written agreement (hereinafter referred to as BUILDING AGREEMENT) whereby E.R. Crown Construction Company agreed to sell to plaintiff two lots of vacant ground in Delaware County and to erect thereon a dwelling and garage for plaintiff. Pursuant to the provisions of said building agreement a cash deposit in the sum of $5,500. was paid by plaintiff to E.R. Crown Construction Company on account of the total consideration of $55,500. Simultaneously with the execution of the building agreement, plaintiff advanced the sum of $15,000; and, a judgment note on which the subject judgment was entered was delivered to plaintiff; and, jointly with all the defendants herein, plaintiff entered into an agreement which, by its terms, was 'made collateral to and concurrent with the agreement of sale dated April 6, 1954.' The 'collateral agreement' which refers to the defendants collectively as 'CROWN' contained the following provision: 'Dozor has advanced to Crown the sum of Fifteen Thousand Dollars ($15,000), receipt of which is hereby acknowledged, under the following terms and conditions:
'Crown, individually and collectively, agree to be liable for the repayment of the said $15,000 and individually and collectively to execute a judgment note in that sum in favor of Harry T. Dozor and to deliver the same upon the signing of this agreement.
'The loan is to be repaid by a credit of $15,000 to Dozor, or his assignee, at settlement on account of the purchase price for completed premises Lots 1 and 2 Carroll Road and Farwood Road, Haverford Township, Delaware County, Pennsylvania, in accordance with the terms of the agreement of sale.
'If settlement for the said premises is not effectuated under the terms of the agreement of sale and within the time fixed ...