Appeals, Nos. 40 and 51, Jan. T., 1958, from order of Court of Common Pleas of Northampton County, Nov. T., 1953, No. 133, in case of Hanover Construction Company et al. v. Clayton F. Fehr et al. Order reversed; and judgment entered for plaintiff.
Francis H. S. Ede, with him Raymond DeRaymond, for plaintiffs.
Herbert Fishbone, for defendants.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
These two appeals challenge the propriety of the ruling of the court below in a replevin action, after a
jury verdict in plaintiff's favor, granting a new trial to defendants and refusing judgment n.o.v. in favor of defendants.
In August 1953 Warren Holland, doing business as Hanover Construction Company, orally agreed to purchase from Clayton Fehr and Roy Hahn a Galion roller and an Allis Chalmers grader for the sum of $5,100. On August 12, 1953 Holland (plaintiff)*fn1 and Fehr and Hahn (defendants) entered into a written bailment lease under the terms of which plaintiff was to pay defendants as rental for the grader and roller the sum of $5,100, $2,100 of which was to be paid upon execution of the lease and the balance of $3,000 to be paid in twelve monthly installments of $250 each. The lease did not set forth the date of each month when the monthly installments were to be paid by plaintiff. However, the lease did recite that a note was to be executed and delivered by the plaintiff to the defendants "upon the execution of [the] lease as evidence of and collateral security for the obligation to pay the rental ...". On the same date plaintiff executed and delivered to defendants both the lease and the note and paid $2,100, the down payment required under the terms of the lease. The note, signed by plaintiff, was payable to the order of the defendants in the amount of $3,000 and provided, inter alia, for payment by plaintiff of the $3,000 in twelve monthly installments of$250 each, "the first payment on September 12, 1953 - interest in advance $180 and on the same date of each month thereafter until fully paid ...".
On the same day the defendants, in writing, assigned both the lease and note to the Second National Bank of Nazareth, Pa., at the same time endorsing the note.
Defendants then received $3,000 from the bank. Plaintiff received possession of the grader and roller and paid the bank $180, one ...