Appeal, No. 122, Jan. T., 1960, from order of Court of Common Pleas No. 7 of Philadelphia County, March T., 1959, No. 3772, in case of The Edward Robinson Agency v. Oleen Products Corporation. Order affirmed.
M. E. Maurer, with him Wexler, Mulder & Weisman, for appellant.
Maurice Pollon, with him Leonard Barkan, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
The plaintiff appeals from an order refusing its motion for judgment on the pleadings for a portion of the claim for which it brought this action in assumpsit. There is no procedure for a summary judgment for a portion of a claim that is not unequivocally and unqualifiedly admitted to be due by the defendant's answer or, stated otherwise, is only contingently admitted by the defendant to be due upon the plaintiff's compliance with certain unperformed conditions.
The procedural situation in the instant case is well described in the opinion of President Judge SLOANE for the court en banc as follows:
"We suppose plaintiff's idea is that the $2,500 is an amount admitted to be due.
"There are two possible ways for the $2,500 to be considered as 'admitted to be due.' The first is under the compromise agreement. That is, plaintiff is entitled to receive the final installment under the compromise. But this is so only if plaintiff is willing to be bound by the compromise, to recognize that by paying the final $2,500, defendant will have satisfied the compromise, and hence that the underlying claim would be discharged.
"But this is not plaintiff's prayer. Plaintiff in short wants us to award it the $2,500 under the compromise
agreement, yet plaintiff repudiates the compromise agreement. It wants the $2,500 under the compromise agreement but will not abide it. Plaintiff can have the agreement's sum but, if so, must recognize the agreement. It cannot be master of its own preference. Defendant, by its answer, has a right to the factual determination of its rights in the compromise agreement and plaintiff cannot forfeit that right simply ...