Appeal, No. 207, April T., 1959, from decree of Court of Common Pleas of Cambria County, Dee T., 1958, No. 120, in case of Windber Trust Company v. Hayden O. Evans. Decree affirmed.
Edward F. Peduzzi and Paul E. C. Fike, with them Myers, Taylor & Peduzzi, and Fike and Cascio, for appellant.
Wallace Louis Coppersmith, with him McWilliams, Margolis & Coppersmith, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 192 Pa. Super. Page 419]
OPINION BY MONTGOMERY, J.
This is an appeal from an order opening a judgment entered on a "note and Security Agreement" used to finance an automobile purchased by appellee from Hallman Chevrolet. The instrument provided for the entry of judgment by confession after default, and also contained the following provision:
"Debtor warrants that title and lawful possession of said goods are in debtor, free from all encumbrances except the security agreement,..."
[ 192 Pa. Super. Page 420]
The loan of $2700.00 made by appellant to appellee was originally intended to cover a particular model of car but when it was found that such model was not available appellee purchased one costing $300.00 more, which was substituted as the automobile covered by the security agreement. Payment for the automobile was made by appellee to the seller by transferring the proceeds of his $2700.00 loan from appellant and executing a note to seller for $390.00, being the $300.00 difference plus $90.00 taxes and interest.
The controversy arose when the certificate of title issued by the Commonwealth showed two encumbrances, one in favor of appellant for $2700.00 and the other in favor of Hallman Chevrolet for $390.00. The opinion of the lower court states the subsequent incidents as follows:
"Thereafter, plaintiff [appellant] informed Hallman as well as defendant that this was a violation of its note and security agreement. We are satisfied from the testimony that this is the first time defendant had knowledge that his security agreement with plaintiff had been violated by Hallman placing a second lien or encumbrance on the Certificate of Title. Both plaintiff and defendant requested Hallman to release its encumbrance and, at first, Hallman refused to do so. However, on September 11, 1958, Hallman's attorney called plaintiff and found that plaintiff was insisting that the Hallman encumbrance be removed from the Certificate of Title. The attorney promptly called Hallman which advised him that it would release its lien and the next day, September 12, 1958, the attorney called plaintiff and advised it that Hallman was willing to release. However, Hallman's attorney was ...