Appeal, No. 217, Oct. T., 1958, from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1956, No. 686, in case of Ida Tonuci v. Ida Beegal. Order affirmed.
Samuel Melnick, for appellant.
Alexander S. Lipschutz, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 188 Pa. Super. Page 67]
This is an appeal from the order of the court below opening a judgment entered on a bond and warrant of attorney accompanying a mortgage. On December 16, 1955 the defendant, owner of premises 3935-39 Pine Street, Philadelphia (hereinafter referred to as the "Pine property"), arranged with Samuel Melnick, an attorney, plaintiff's husband, for a loan in the amount of $3,600.00 to be secured by bond and mortgage upon the Pine property. As part of the same transaction and on the same date Melnick entered into a written
[ 188 Pa. Super. Page 68]
agreement with defendant by the terms of which Melnick was to receive the sum of $600.00 for "procuring said sum of $3600. and for other services and undertakings" enumerated in the written agreement. The material part of said agreement is as follows: "Melnick agrees to assume the risk of loss of any balance of principal and interest of said $3600.00, remaining unpaid, and agrees to procure the release of applicant from all personal liability in the event that the real estate be ... sold by the Sheriff upon a judicial sale, provided the applicant notifies Melnick at least 2 weeks in advance of said sale; ...." At the time of the execution of the agreement and the mortgage papers, a cashier's check in the sum of $3,600.00, charged to the account of plaintiff, was delivered to defendant, who endorsed the check and returned it to Melnick. Immediately thereafter Melnick endorsed the check, the check was cashed and Melnick received $600.00 (the consideration stated in the agreement) in cash from the proceeds of the check.
Subsequently defendant defaulted in mortgage payments on the Pine property and on June 7, 1956 judgment was entered against defendant and damages assessed at $4,004.12. On September 13, 1956 plaintiff filed an averment of default and caused a writ of fieri facias to issue against premises 1134 Englewood Street, Philadelphia (hereinafter referred to as the "Englewood property"), of which defendant was the record owner. The effect of the rule to open judgment was to stay the sheriff's sale of the Englewood property scheduled for November 5, 1956.
On September 5, 1956 a judgment against defendant was obtained by the owner of a ground rent on the Pine property and on October 1, 1956 these premises were sold by the sheriff of Philadelphia County. The sheriff's sale of the Pine property was clearly "a judicial
[ 188 Pa. Super. Page 69]
sale" within the meaning of the agreement of December 16, 1955 and Melnick had not procured the release of the defendant from "all ...