Appeal, No. 310, Oct. T., 1960, from order of Court of Common Pleas of Clearfield County, Feb. T., 1960, No. 630, in case of A.B. & F. Contracting Corporation v. Matthews Coal Company, Inc. Order affirmed.
Joseph P. Work, with him Smith, Smith & Work, for appellant.
John B. Gates, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Watkins, and Montgomery, JJ. (ervin, J., absent).
[ 194 Pa. Super. Page 272]
This is an appeal from an order of the Court of Common Pleas of Clearfield County striking off a judgment entered by A.B. & F. Contracting Corporation against Matthews Coal Company, Inc. The factual situation and the respective legal contentions are set forth in the following excerpt from the opinion below:
"The plaintiff and defendant entered into an agreement dated May 8, 1952, in which the plaintiff was designated the contractor, and the defendant designated
[ 194 Pa. Super. Page 273]
operator. By virtue of this agreement, the defendant, the owner of certain surface and mineral rights of several described tracts of land in Penn Township, Clearfield County, Pennsylvania, agreed to pay the plaintiff, as contractor, so much per ton to strip, lift and carry away the coal on the described land.
"This agreement contained a warrant of attorney, authorizing the contractor, the plaintiff, to confess judgment against the defendant, the operator, for any coal stripped and transported, not paid for by the defendant, at the rate fixed in the agreement. The warrant of attorney appears as follows:
"'(i) The parties mutually agree and authorize any attorney of any Court of Record in Pennsylvania or elsewhere as often as default shall be made in the payment of any sums due either party under this Agreement, to appear for such defaulting party and confess judgment or judgments against it, for the sums then due and unpaid, with an attorney's commission of ten per cent, costs of suit, without stay of execution, waiving inquisition and extension and condemnation is hereby agreed to; provided, that the warrants of attorney to confess judgment or judgments for sums of money due hereunder, shall not be exercised by the aggrieved party until after ten (10) days' notice, in writing, has been given to the defaulting party of any default claimed, so that during said ten (10) days' period, such defaulting party may cure, or rectify the said default. It is further mutually understood and agreed that one exercise of such warrant of attorney shall not exhaust the same, but that judgment or judgments may be entered as often as default shall occur hereunder'.
"The warrant of attorney inures to the benefit of either party, in the event a default occurs in any of the ...