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DELAWARE VALLEY FACTORS v. MCDONOUGH (06/30/60)

June 30, 1960

DELAWARE VALLEY FACTORS, INC.
v.
MCDONOUGH, APPELLANT.



Appeal, No. 185, Jan. T., 1960, from judgment of Court of Common Pleas No. 6 of Philadelphia County, March T., 1958, No. 1734, in case of Delaware Valley Factors, Inc. v. Michael McDonough, individually and trading as Michael's Furniture Company. Judgment reversed.

COUNSEL

Edward M. Snyder, with him Fred Lowenschuss, for appellant.

Louis J. DiGiacomo, with him Zoob & Matz, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.

Author: Eagen

[ 400 Pa. Page 598]

OPINION BY MR. JUSTICE EAGEN.

This is an action in assumpsit arising out of a factoring contract entered into between plaintiff-appellee, Delaware Valley Factors, Inc., and Evaco, Inc., engaged in the business of selling furniture. The defendant-appellant signed as the guarantor of the obligations of Evaco. The issue was tried before a judge without a jury and judgment entered in favor of the plaintiff. Exceptions to the findings were dismissed and from the judgment entered this appeal followed.

[ 400 Pa. Page 599]

Under the terms of the contract, plaintiff-appellee agreed to purchase from Evaco a quantity of its accounts receivable and other choses in action and to advance fifty per cent of the face value of all accounts so purchased. Evaco was to pay the factor one-fifteenth of one per cent per day "compensation"*fn1 upon the amount of the purchase money outstanding on accounts as yet uncollected. Evaco was to be credited with payments received by plaintiff-appellee on any account, which exceeded the amount advanced by the latter. In the event any purchased account or portion thereof failed of collection, Evaco agreed to pay on demand to plaintiff the amount still due.

This action as stated in the complaint involved an alleged default in eighty-five purchased accounts for which plaintiff-appellee advanced the sum of $37,674.24. The pleading states that a total of $4,937.66 was collected on these accounts leaving a principal balance due in the amount of $32,736.58, which had not been paid by Evaco on demand. This action is for this amount with interest from April 5, 1957.

The answer denied that the complaint set forth the true balance due. It admitted that plaintiff-appellee had advanced the amount of money stated in the complaint but averred that the total amount of accounts purchased was not set forth in the complaint and all credits due were not given.

Six months after the taking of testimony was completed the trial judge entered a short memorandum stating that "upon the present state of the record it is not ...


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