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HAYES (ET AL. v. STEPHENSON. (06/15/60)

June 15, 1960

HAYES (ET AL., APPELLANT),
v.
STEPHENSON.



Appeal, No. 213, April T., 1959, from order of Court of Common Pleas of Erie County, May T., 1957, No. 85, in case of A. J. Hayes et al. v. R. N. Stephenson et al. Motion to quash refused; order affirmed.

COUNSEL

Gerald A. McNelis, Sr., with him McNelis and McNelis, for appellant.

A. Grant Walker, with him Gifford, Graham, MacDonald & Illig, for appellees.

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

Author: Montgomery

[ 192 Pa. Super. Page 393]

OPINION BY MONTGOMERY, J.

A. J. Hayes and Emery Motor Sales Company, a corporation, brought an action in assumpsit for monies alleged to be owed them by defendants and recovered a joint verdict. From the grant of a new trial, Emery Motor Sales Company filed this appeal. A. J. Hayes did not appear or disclaim his right to appeal, and from the record before us it appears that the appeal was not filed in his behalf jointly with appellant. Defendants-appellees have filed a motion to quash the appeal because of the failure of Hayes to join in it.

Although the jury returned a verdict for the plaintiffs jointly, the claims upon which the suit is based

[ 192 Pa. Super. Page 394]

    appear not to have been jointly held. In the first count of the complaint plaintiffs sought to recover the proceeds of an insurance contract issued by Calvert Fire Insurance Company on a certain Ford automobile that had been owned by Guy B. Emery, the sole owner of Emery Motor Sales Company. The automobile had been destroyed by fire in an accident which caused the death of Mr. Emery. The policy named Emery Motor Sales and Commercial Credit Corporation as beneficiaries as their interest might appear. The proceeds of the policy were paid by Calvert Insurance Company to Commercial Credit Corporation, which applied it on an indebtedness of Emery Motor Sales Company for a loan on the car which was destroyed. A. J. Hayes, a large creditor of Emery Motor Sales Company, questioned whether Commercial Credit Corporation had advanced the money on the car and brought the suit on the basis that Commercial Credit Corporation and R. N. Stephenson, its manager, had agreed to collect the insurance money and pay it to him.

Count two was based on a claim that Commercial Credit Corporation had agreed to pay Hayes the proceeds of the insurance policy because he had purchased certain judgments which Commercial Credit Corporation held against Ermery Motor Sales Company. This count was not submitted to the jury because the court had previously eliminated it.

By count three plaintiffs sought to recover a balance in a reserve account which Commercial Credit Corporation held for Emery Motor Sales Company under various financing agreements. Hayes disputed certain credits against this fund although he appears not to have been a party to the agreements.

From these facts it appears that plaintiffs filed the suit under Pa. R.C.P. No. 2229, which permits persons to join as plaintiffs ...


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