Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FIDELITY TRUST COMPANY v. GARDINER ET UX. (11/11/59)

November 11, 1959

FIDELITY TRUST COMPANY
v.
GARDINER ET UX., APPELLANTS.



Appeal, No. 167, Oct. T., 1959, from order of Court of Common Pleas of Cumberland County, Sept. T., 1956, No. 473, in case of Fidelity Trust Company v. William B. Gardiner et ux. Order reversed.

COUNSEL

William R. Mark, for appellants.

Edwin M. Blumenthal, for appellee.

Before Rhodes, PU J., Hirt, Wright, Woodside, Ervin, and Watkins, JJ. (gunther, J., absent).

Author: Hirt

[ 191 Pa. Super. Page 19]

OPINION BY HIRT, J.

On July 24, 1956, plaintiff, Fidelity Trust Company, entered judgment by confession on a note of the defendants for $2,029.20. The note on its face provided for the payment by the defendants of the above amount in 60 monthly payments from July 14, 1956, of $33.82 each. The payee named in the note was Premier Insulation Sales which had assigned it to the plaintiff Trust Company. Alleging defendants' failure to make the monthly payments according to its terms - a default which made the unpaid installments immediately due and payable - Fidelity Trust Company on February 11, 1957, issued an execution by writ of fi. fa. to collect the whole of the principal sum. The defendants, asserting fraud permeating the whole transaction, petitioned the lower court to open the judgment and to let them into a defense. The order refusing relief will be reversed.

There is no denial of the testimony of the defendants taken on depositions in support of their petition. Undoubtedly they were imposed upon in the transaction which gave rise to the present controversy and in our view the defense of fraud is open to them, in questioning the right of the bank to recover, under the circumstances. Of necessity the proofs must be referred to, somewhat in detail.

The defendants, husband and wife, in April 1956, bought a modest home in Shippensburg, and financed the purchase with the proceeds of a "G.I." mortgage.

[ 191 Pa. Super. Page 20]

Both were employed, he as a mechanic and she, sewing facings on the cuffs of pants for a clothing manufacturer. Their combined wages constituted the sum total of their financial resources. They were inexperienced in even ordinary business affairs; their common schooling had ended with or before the end of the 8th grade. Six months after they bought the house, on or about June 8, 1956, they were visited by one Alex DiSantis, who falsely posed as a representative of "Reliable Home Improvement" of Harrisburg. As such, he induced the defendants to enter into a contract with his purported principal for the covering of their house with "Aluminum Siding". For the work to be "done in a workmanship like manner" the contract provided for the payment by the defendants of "the sum of $1,500.00 plus legal rate of interest, payable... in 60 equal monthly installments of $33.72. First payment to be made 45 days after completion." The carbon copy of the contract delivered to the defendants, in evidence as their exhibit No. 1, is on the printed form of the Reliable organization. At the top of defendants' original copy, the contract (in form usual to a letterhead) this printed caption appears in bold type:

RELIABLE HOME IMPROVEMENT 1024 Paxton Street, Harrisburg, Pa. Phone Cr 6-7479

During the negotiations, the defendants had protested that they had only recently incurred the mortgage payments incident to the purchase of their home and that they could not afford any additional financial obligation. DiSantis met this objection by stating that his principal, impliedly Reliable Home Improvement, wanted a model home, so improved, to show other and future prospective customers and that the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.