Appeal, No. 163, March T., 1959, from judgment of Court of Common Pleas of Allegheny County, April T., 1958, No. 202, in case of Slater Supply Company v. Universal Builders' Supply Company, Inc. Judgment affirmed. Proceedings on dispute concerning distribution of fund arising from execution.Before SMART, J., and a jury. Verdict for plaintiff; defendant's motion for judgment n.o.v. granted and judgment entered. Plaintiff appealed.
Frank R. Bolte, for appellant.
John A. Metz, Jr., Guy L. Warman, Harry Bowytz, and Metz, Cook, Hanna & Kelly, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MCBRIDE
This is a proceeding to determine a dispute concerning the distribution of a sum of money in the hands of the sheriff of Allegheny County arising from the execution sale of certain real estate.
On February 2, 1957, Universal Builders' Supply Company, Inc., entered judgment by confession against Coslow-Ferarra, Inc. for $9,500 based on a judgment note dated February 1, 1957. Thereafter, on February 13, 1957, judgment was entered in the amount of
$6,963.11 in favor of Slater Supply Company and against the same judgment debtor by confession on a judgment note bearing the same date. In February, 1958, Universal issued a fieri facias on its judgment in the amount of $11,077 (debt $9,500; interest to February 1, 1958, $570; 10% attorney's commission $1,007), with interest, and levied upon and sold real estate of the judgment debtor. The real estate was sold March 7, 1958, at public sale, for $12,725.After payment of costs, taxes, etc., there remained a balance of $11,048.86 which, according to the sheriff's return and schedule of distribution, was to be paid to Universal. On March 20, 1958, Slater filed exceptions to the proposed distribution, averring that the Universal judgment was entered on a note given by Coslow-Ferarra as a construction loan and that only $6,000 had been paid and not the $9,500 for which judgment was entered. On May 16, 1958, upon the motion of Slater the Court of Common Pleas of Allegheny County directed an issue*fn1 wherein Slater would be plaintiff and Universal defendant, to determine the question of the consideration furnished the judgment debtor by Universal for their note of February 1, 1957. Universal contended that the note was given as security for past
due accounts and for future purchases of labor and materials, and that the actual debt exceeded $9,500. Slater admitted that $6,000 was due Universal on this judgment as a result of a construction loan and requested that any sum in excess of that be distributed to them. Pursuant to a stipulation between the parties the sheriff released $6,000 to Universal and retained the remainder of $5,048 for final distribution.
A jury trial was held to determine the precise issue framed by the court. The jury rendered a verdict in favor of Slater. Universal's motion for judgment ...