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MACY v. OSWALD ET UX. (06/13/62)

June 13, 1962

MACY
v.
OSWALD ET UX., APPELLANTS.



Appeals, Nos. 60 and 61, April T., 1962, from order of Court of Common Pleas of Cambria County, Sept. T., 1958, No. 841, in case of William Macy v. James Oswald et ux. Order affirmed.

COUNSEL

Robert S. Glass, with him Glass and Glass, for appellants.

Clifton McWilliams, Jr., with him McWilliams, Margolis and Coppersmith, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Montgomery

[ 198 Pa. Super. Page 437]

OPINION BY MONTGOMERY, J.

This appeal is the result of an order refusing to open a confessed judgment entered in appellee's favor against appellants. In such cases the scope of review is limited to an examination of the record to determine whether there has been an abuse of discretion on the part of the lower court. Ahrens v. Goldstein, 376 Pa. 114, 102 A.2d 164; Associates Discount Corporation v. Kelly, 169 Pa. Superior Ct. 74, 82 A.2d 689. The judgment resulted from the execution and delivery of a judgment note by appellants to secure the unpaid balance of the purchase price due appellee on a sale of a business, a gasoline station, to James Oswald, one of the appellants.

In their petition to open the judgment appellants alleged the following as reasons, viz.:

(a) Theresa, being a married woman, could not become liable as an accommodation signer; (b) fraud; (c) failure to comply with Bulk Sales Act Provision of Commercial Code; (d) failure to register the business under the Fictitious Names Act; (e) failure of good title, since the other partner was not joined in the sale; and (f) violation of the Statute of Frauds.

The following facts are established:

On and prior to June 4, 1957, William Macy, the appellee, and Michael Macy were, as partners, the owners and operators of a service station located in Johnstown, Pennsylvania. The business was operated and conducted under a fictitious name, "Corner Service Station", but was not registered as a fictitious name.

On June 4, 1957, William Macy alone negotiated with James Oswald alone and entered into an oral agreement whereby James Oswald agreed to purchase said service station business for the sum of $1,500. Oswald paid the appellee the sum of $125 cash and it was agreed that the balance of ...


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