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STRAWBRIDGE & CLOTHIER v. GARMENT MANUFACTURERS (03/18/59)

March 18, 1959

STRAWBRIDGE & CLOTHIER
v.
GARMENT MANUFACTURERS, INC. (ET AL., APPELLANT).



Appeal, No. 404, Oct. T., 1958, from judgment of Municipal Court of Philadelphia County, Sept. T., 1957, No. 4429, in case of Strawbridge & Clothier v. Garment Manufacturers, Inc. et al. Judgment affirmed.

COUNSEL

Jon Grossman, with him David N. Rosen, and Rosen & Grossman, for appellant.

Simon Pearl, with him Sklar and Pearl, for appellee.

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

Author: Gunther

[ 189 Pa. Super. Page 44]

OPINION BY GUNTHER, J.

Plaintiff, Strawbridge & Clothier, brought an action in assumpsit against defendants, Garment Manufacturers, Inc. and Sol Sardinsky as a third party beneficiary of a certain agreement. On November 2, 1956, Ralph Tudesco became indebted to plaintiff in the amount of $2,573.06 for goods sold and delivered. He was then the owner of all the capital stock of Garment Manufacturers, Inc. Appellant, Sol Sardinsky, acting as a representative for certain purchasers undisclosed entered into a written agreement with Tudesco to purchase all of Tudesco's shares of stock of Garment Manufacturers, Inc., for $30,000.00 cash and a $20,000.00 note, on the agreement that the Corporation will remain "primarily liable" for certain obligations, including that of plaintiff. These obligations were itemized on a schedule attached to the agreement. Thereafter, on February 20, 1957, the claim of the plaintiff remaining unpaid, the duly authorized counsel for the defendants reaffirmed the agreement in a letter and stated in a letter that the claim of the plaintiff "is going to be taken care of shortly." Subsequently, this action was brought and, after trial, the jury rendered a verdict in favor of the plaintiff against Sol Sardinsky alone in the amount of $2,943.50.

Both plaintiff and Sardinsky moved for judgment n.o.v. and, in addition, defendant, Sardinsky moved for a new trial. Plaintiff's motion for judgment n.o.v. against Garment Manufacturers, Inc., was granted providing a remittitur be filed so as to reduce the judgment to $2,750.00. Sardinsky's motions were denied. Plaintiff filed a remittitur, and Sardinsky alone took the present appeal.

[ 189 Pa. Super. Page 45]

The only question raised on this appeal is whether under the agreement entered on November 2, 1956, Sardinsky became personally liable to the plaintiff.

During the negotiations for the sale of the stock and the preparation of the agreement between Tudesco and Sardinsky, plaintiff introduced testimony to the effect that Sardinsky at first refused to honor the claim of the plaintiff which was incurred by Tudesco individually for the purchase of certain items of furnishings and furniture for the corporation's use. During this discussion, Tudesco stated to Sardinsky that "if you don't want this bill, leave the furniture out and everything I bought from Strawbridge & Clothier, and I'll honor it. I'll take the furniture and everything that belongs to me that you don't want that I bought from Strawbridge & Clothier, and I will honor the bill." After further discussions, Sardinsky stated: "All right, we'll take the furniture and honor the bill. Put it down." He further stated: "When I sign something I'll honor it." As a result of this understanding, plaintiff's account was included in the agreement. This testimony was supported by Tudesco's attorney who stated that Mr. Tudesco offered to take the items which he bought from plaintiff in the event Sardinsky would refuse to assume the debt.

The agreement was signed by appellant as "Representative for the Purchasers." Who the purchasers were was not revealed to the seller. The agreement was also signed by Tudesco individually and as president of Garment Manufacturers, Inc. In paragraph 9 of said agreement it was specified that the purchaser shall cause the corporation (Garment Manufacturers, Inc.) to assume all obligations appearing on the separate schedule and which did not appear on the ...


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