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AMERICAN HEATING COMPANY v. PERSELL. (12/28/56)

December 28, 1956

AMERICAN HEATING COMPANY, APPELLANT,
v.
PERSELL.



Appeal, No. 172, April T., 1955, from order of Court of Common Pleas of Allegheny County, Oct. T., 1954, No. D.S.B. 744, in case of American Heating Company v. Donald Persell et al. Order affirmed.

COUNSEL

Seymour A. Sikov, for appellant.

Samuel M. Rosenzweig, for appellees.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Hirt

[ 182 Pa. Super. Page 607]

OPINION BY HIRT, J.

The defendants own their home in Wilkinsburg. On March 8, 1954 they accepted an offer made by a salesman on plaintiff's behalf for the installation of a furnace which would heat the nine rooms on the first and second floors of their house. A written contract was executed on that date by the defendants, and by the salesman Borman, acting for the plaintiff. Defendants then paid $25 on account; the contract provided for the payment of $1,200, the remaining purchase price, in cash on "completion and inspection" of the work. There was a judgment note attached "by perforation" to the contract. Defendants signed this note also but plaintiff's representative at the hearing in this

[ 182 Pa. Super. Page 608]

    proceeding conceded that it was signed by them in blank and he stated that, on the following day according to his invariable practice, he filled in the amount of defendants' obligation, to-wit: $1,200 payable "in one monthly installment of $1,200 upon completion and inspection as per contract." The contract in evidence provides for a furnace of sufficient capacity to heat the house to 70 degrees in zero weather. Defendants' carbon copy of the contract was illegible in some of its material provisions, including the stated efficiency of the furnace to be supplied.

As a result of defendants' dissatisfaction with the furnace in operation the plaintiff on April 20, 1954 entered judgment on an alleged copy of the note given by them. But because of an error in the narr and in the amount of the note, judgment was entered by confession at No. 861 July Term, 1954 in the sum of $1,408.50 as the amount of the debt, and $211.28 attorney fee - a total of $1,619.78 payable in installments. Defendants in their petition of July 28, 1954, in addition to complaining of the error in the amount of the judgment and in the terms of payment, averred that trial and inspection of the furnace had demonstrated that it would not heat the house in accordance with the terms of the contract. On these grounds they sought to have the judgment opened. In its answer the plaintiff admitted "that the purported copy of the original note which is filed at the above number and term is a nullity" and the plaintiff also consented "to striking off the judgment [so entered] ... without prejudice as to the rights between the parties arising out of the transaction and contract between the parties."

On July 21, 1954, a second judgment was entered for plaintiff on the warrant of attorney contained in the defendants' note, in the principal sum of $1,200

[ 182 Pa. Super. Page 609]

    with an addition of an attorney's fee of $180. By petition the defendants on July 28, 1954 obtained a rule on plaintiff to open this judgment. After hearing on the rule however the defendants on November 30, 1954, petitioned the court for an order striking the judgment from the record. After ...


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