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NORRISTOWN FORD CO. v. METROPOLITAN AUTO DEALER (06/11/57)

June 11, 1957

NORRISTOWN FORD CO.
v.
METROPOLITAN AUTO DEALER, INC., APPELLANT.



Appeal, No. 289, Oct. T., 1956, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1953, No. 6328, in case of Norristown Ford Co. v. Metropolitan Auto Dealer, Inc. Judgment affirmed.

COUNSEL

Morton Newman, with him Rappeport & Newman, for appellant.

John E. Walsh, Jr., with him Henry J. Morgan, and White, Williams & Scott, for appellee.

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

Author: Hirt

[ 183 Pa. Super. Page 646]

OPINION BY HIRT, J.

In this action in assumpsit, tried without a jury, the finding was for the plaintiff in the sum of $1,210 and judgment was entered in that amount.

These are the facts which we must take as established by the finding of the trial court: On July 17, 1952, the plaintiff sold to the defendant three used

[ 183 Pa. Super. Page 647]

    automobiles for a total sum of $3,065. Upon payment by defendant of $2,065 of the purchase price, the three cars were delivered to the defendant and were accepted by it. The judgment here on appeal is for the unpaid balance of the purchase price, of $1,000 with interest. The defendant received proper assignments of the titles, not however at the time the three cars were delivered but within one week thereafter.

The Act of May 1, 1929, P.L. 905, § 207(a), as amended, 75 PS § 37(a) in part provides: "In the event of the sale or transfer of the ownership of a motor vehicle, trailer, or semi-trailer for which certificate of title has been issued, the owner of such motor vehicle, trailer, or semi-trailer shall execute an assignment of the certificate of title to the purchaser or transferee, ... at the time of the delivery to him of such motor vehicle, trailer, or semi-trailer." (Italics supplied). Under the single question raised in this appeal the defendant argues that because of the express provision of the above statute, as to the assignment of certificates of title with reference to the date of delivery of the motor vehicles, the sales contract in this case was "illegal void and unenforceable". On that ground the defendant contends that the plaintiff seller is "barred from recovering any unpaid balance of the purchase price."

Pa. R.C.P. 1030 provides that certain defenses, shall be pleaded in a responsive pleading under New Matter; and Pa. R.C.P. 1032 provides that subject to certain exceptions "A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply ..." We are unable to agree with appellee however that, since illegality was not pleaded in this case, the defendant is barred by the above rule from raising the ...


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