Appeal, No. 385, Jan. T., 1962, from order of Court of Common Pleas No. 6 of Philadelphia County, March T., 1957, No. 1502, in case of Sterling Electric & Furniture Co. v. Franklin Peterson and Marjorie Peterson. Order reversed.
Malcolm H. Waldron, Jr., with him Waldron and Weitzman, for appellant.
Hardy Williams, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Some time in the early part of the year 1957 the Sterling Electric & Furniture Co. entered into an oral agreement with Franklin Peterson and his wife, to supply them with wall-to-wall carpeting for their house, install spiral French windows, and do certain repair work including new spouting. In addition to the physical materials and work needed for their domicile, it appeared that the Peterson's financial house was in bad shape, requiring extensive shoring up and straightening out in the way of paying off pressing outstanding debts. Sterling agreed to pay off these debts for the Petersons, the amounts involved to be added to the cost of the installations and repairs to be done to the house.
A judgment note was signed to pay Sterling for its work and make recompense for the debts it undertook to liquidate. On March 14, 1957, Sterling confessed judgment on this note in the amount of $6650 to which was added interest, making a total of $7,477.48. On April 26, 1960, the Petersons filed a petition to open judgment, alleging that the note which they had given to Sterling carried no stated amount because it was specifically understood that the correct sum was to be
inserted by Sterling after the total had been ascertained. The Petersons averred that Sterling fraudulently determined the total indebtedness to amount to $6650, whereas in fact it was only $2832.25, plus a nominal finance charge.
Sterling answered, depositions were taken, and eventually the Court of Common Pleas No. 6 of Philadelphia County opened up the judgment. Sterling appealed.
The person who claims that he signed a blank judgment note must climb a steep evidentiary hill to prove that he did what is drastically contrary to the most elementary caution in business affairs and the most rudimentary rules of financial self-preservation. Whether the court below believed that the Petersons successfully climbed that hill with the burden of proof they had to carry is not made clear in the court's opinion. The opinion merely states that the defendants "clearly and unequivocally testified" that they signed the controverted note in blank, but it does not point out that the plaintiff, through its president, categorically denied this testimony. The court contents itself with saying that the "note is so tainted with fraud and irregularity that justice requires that it be opened," but does not specify wherein the fraud and irregularity occur.
However, aside from all that, the court failed to take into consideration the fact that the defendants admitted at the time of the taking of depositions that they owe the plaintiff $1,752. After this admission was made, the plaintiff filed a petition asking to be allowed to proceed with execution for that amount. The attorney, at that time representing the defendants, agreed that the rule should be made absolute, and the court did make absolute the rule, ...