Appeal, No. 221, Oct. T., 1961, from order of Court of Common Pleas of Lebanon County, Sept. T., 1960, No. 261, in case of Kirk Foulke et al. v. Hatfield Fair Grounds Bazaar, Inc. Order affirmed.
Calvin D. Spitler, for appellant.
James R. Koller, with him Siegrist, Koller & Siegrist, for appellees.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 196 Pa. Super. Page 156]
This case arises as the result of a rule, granted upon petition of a mortgagor, to show cause why an execution issued upon a judgment entered on a mortgage bond should not be satisfied or record without the payment of any or all of the sum of $3,691.41, representing an attorney's commission of five percent for collection. The court below discharged the rule, and this appeal by the mortgagor followed.
On May 26, 1959, the Hatifeld Fair Grounds Bazaar, Inc., hereinafter referred to as Hatfield, purchased from Kirk Foulke and his wife, Kathryn R. Foulke, a farm premises located in Heidelberg Township, Lebanon County, together with farm equipment, a large number of pigs, and other personal property which included a garbage disposal contract with the City of Reading. The total purchase price was $100,000.00, set up for accounting purposes as $80,000.00 for real estate and $20,000.00 for personal property. The sum of $29,000.00 was paid in cash, and a purchase money mortgage was given to the Foulkes in the amount of $71,000.00, payable $35,000.00 on June 1, 1960, and $36,000.00 on June 1, 1961. The mortgage bore interest at the rate of three percent per annum and provided for an attorney's commission of five percent for collection in the event of default.*fn1
[ 196 Pa. Super. Page 157]
During April, 1960, Hatfield commenced to dump unconsumed garbage on the mortgaged premises. Shortly thereafter, the Foulkes learned that the State Department of Health was complaining about the condition of the farm land, about July 29, 1960, they received a letter from the Department pertaining to this condition. In July or August of 1960, Hatfield received an official notice from the Department of Health complaining that the unconsumed garbage was causing stream pollution. No action was taken by Hatfield to correct this situation.
Also during April, 1960, the Foulkes learned that Hatfield would default in its payment of principal and interest due on June 1, 1960. They then contacted their attorney and were in constant touch with him thereafter, consulting him either in the office or by telephone two or three times a week. On July 11, 1960, the attorney sent a letter to Hatfield demanding that payment of the amount due June 1, 1960, be made no later than July 19, 1960. However, Hatfield never paid or offered to pay any of the interest or principal. On August 5, 1960, a judgment in the amount of $7,800.00 was entered against Hatfield by a third party. On August 7, 1960, the Foulkes learned that arrangements had been made to remove all of the pigs from the mortgaged premises. Accordingly, on August 8, 1960, the Foulkes directed their attorney to enter judgment on the bond accompanying the mortgage, and to issue execution. By virtue of this writ, the Sheriff levied upon the mortgaged real estate, the farm equipment, and approximately 3000 pigs. At the sheriff's sale the Foulkes purchased most of the pigs and all of the farm
[ 196 Pa. Super. Page 158]
machinery except one manure spreader. The proceeds of the sale amounted to $78,080.00. The costs on the writ were $479.00, and the debt and interest totaled $73,828.17. The Sheriff paid into court the attorney's commission of $3,691.41, and returned the balance of $81.42 to Hatfield. Following the granting of the rule to show cause, the Foulkes filed an answer. A hearing was held at which Hatfield's president (John K. Geyer) and Kirk Foulke testified. Upon ...