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NISSENBAUM v. BRYANT. (04/16/59)

April 16, 1959

NISSENBAUM, APPELLANT,
v.
BRYANT.



Appeals, Nos. 410 and 411, Oct. T., 1958, from orders of Court of Common Pleas No. 1 of Philadelphia County, June T., 1955, No. 1423, in case of Samuel C. Nissenbaum, trading as American Discount Company v. Frederick H. Bryant et al. Orders affirmed in part and reversed in part.

COUNSEL

M. E. Maurer, with him Wexler, Mulder & Weisman, for appellant.

William T. Coleman, Jr., with him Dilworth, Paxson, Kalish, Kohn & Kilks, for appellees.

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

Author: Watkins

[ 189 Pa. Super. Page 309]

OPINION BY WATKINS, J.

These appeals are from orders of the Court of Common Pleas No. 1 of Philadelphia refusing motions by Samuel C. Nissenbaum, trading as American Discount Company, the plaintiff appellant, for judgment n.o.v. as to Dr. Frederick H. Bryant and Vivian Bryant, his wife, defendants appellee and for a new trial as to Vivian Bryant. Dr. Bryant filed a cross appeal from the order granting appellant's motion for a new trial as to him.

Dr. Frederick H. Bryant, a medical doctor, on February 15, 1954, entered into an agreement with Walter S. Ritter, for the purchase of a Pioneer X-ray machine at a price of Five Thousand Five Hundred thirty-five ($5535) dollars. The doctor paid Ritter Five Hundred thirty-five ( $535) dollars as a down payment and the balance was to be financed over a period of 36 months. The account was apparently assigned by Ritter to Nissenbaum. In order to secure the necessary financing, the doctor filled out a credit application to Nissenbaum. After approval of the credit, the doctor executed a chattel mortgage, bond and warrant, together with 36 promissory notes payable to Nissenbaum. These papers were admittedly signed by the doctor and bore the name of Vivian Bryant. Some of the notes were signed by the doctor in his own hand and others by an employee in his office.

Ritter delivered the signed papers to Nissenbaum who issued his check for Four Thousand Five hundred seventy-five ($4575) dollars to Ritter. The notes were to be presented monthly for payment at the doctor's bank. Three notes were so presented and paid. Upon presentation of the fourth note it was not paid because of insufficient funds in the doctor's account. Nissenbaum got in touch with the doctor and with Ritter and thereafter thirteen additional notes were paid. There

[ 189 Pa. Super. Page 310]

    is some testimony that money for the payment of some or all of these notes was supplied by Ritter. In May of 1955, the doctor refused to pay any more notes. Nissenbaum, after giving notice to the doctor and his wife, entered judgment on the bond and warrant for the claimed balance due of Three thousand six hundred eighteen ($3618) dollars.

The doctor and his wife petitioned to open the judgment, the petition was granted and after trial, the jury brought in a verdict in their favor. Nissenbaum then filed his motions for judgment n.o.v. and a new trial. After argument before the court en banc the motions for judgment n.o.v. and for a new trial as to Vivian Bryant were denied but the motion for a new trial as to the doctor was granted.

The defense of the doctor was failure of consideration, as Ritter never delivered the X-ray machine to him. The defense of Vivian Bryant was that she had not signed the bond and warrant and ...


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