Appeal, No. 329, Jan. T., 1961, from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1957, No. 10503, in case of Greater Valley Terminal Corporation v. P. J. Goodman. Judgment affirmed; reargument refused January 16, 1962.
Samuel P. Lavine, with him Steinberg, Steinbrook, Lavin & Gorelick, for appellant.
Robert K. Greenfield, with him Allen J. Levin, Edward Greer, and Folz, Bard, Kamsler, Goodis & Greenfield, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE COHEN.
ABC Federal Oil & Burner Co. (ABC) owed substantial debts to Greater Valley Terminal Corporation (plaintiff) and P. J. Goodman (defendant) for unpaid oil deliveries. Plaintiff was exerting pressure upon ABC for payment and had refused to sell any more oil to that firm unless paid for on delivery and unless the past debt was liquidated.
Defendant recognized that if plaintiff proceeded to enforce collection of the debt owed plaintiff by ABC, ABC would not be able to pay and its credit position would be so endangered that it would be forced to discontinue operations. Consequently, numerous meetings were held by parties representing plaintiff, defendant and ABC. As a result of these meetings, ABC gave plaintiff its note for $325,306.92 payable in eighteen
weekly installments. Executed contemporaneously was defendant's signed statement written on the bottom of the note: "For value received, the undersigned hereby guarantees payment of the within Note." Defendant at the same time also delivered to plaintiff his personal financial statement indicating thereon that said statement was given by the defendant to induce plaintiff to accept defendant's guarantee of the note given by ABC to plaintiff. ABC defaulted in the terms and payment of the note and plaintiff brought this action on defendant's guarantee.
Since an inference of consideration may be drawn where surety is given contemporaneously with the principal obligation, the plaintiff could have properly rested its case after having proved, in addition to the principal agreement, defendant's contemporaneous endorsement and non-payment. Harr, Sec'y of Banking v. Perkins, 335 Pa. 186, 189, 6 A.2d 534 (1939). Plaintiff in its complaint, however, unnecessarily pleaded more than is required to invoke the inference. The complaint averred the existence of an "undertaking" which constituted other consideration for the surety endorsement. The court below, therefore, over plaintiff's objection, permitted the introduction of parol testimony showing a different consideration than what had been alleged in the complaint and its complete failure. The jury, nevertheless, returned a verdict for plaintiff and the court below denied motions for new trial and judgment n.o.v.
Defendant claims on appeal that since plaintiff alleged other consideration, rather than taking advantage of the inference, plaintiff was bound to prove, and could rely on, only the consideration alleged, and waived his rights to rely on the inference.
Plaintiff, however, proceeded at trial, seemingly convinced that it had properly pleaded its case. It offered no witnesses ...