Appeal, No. 307, Jan. T., 1962, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1960, No. 189, in case of Unit Vending Corporation v. George Lacas, Constantine Lacas and James Costa, executors under will of Kole Soter, also known as Nikola Soter, deceased. Order affirmed.
Melvin L. Fuhrman, with him Fuhrman and Furman, for appellant.
Joseph Rappaport, with him Rappaport & Lagakos, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
This is an action for an alleged breach of contract. The issue was tried below before a judge without a jury, and an award entered in the plaintiff's favor for the full amount claimed. The court en banc awarded a new trial from which order plaintiff appeals.
The plaintiff, Unit Vending Corporation (Unit), is engaged in the business of selling cigarettes through distributing cigarette machines in the City of Philadelphia. On July 7, 1959, it entered into a written contract with one Kole Soter, then the proprietor of a diner, giving Unit the exclusive right to sell cigarettes through vending machines in the diner for a continuous period of five years.
The contract provided, inter alia, (1) That the consideration paid by Unit for the right given was a loan to Soter in the amount of $1000 without interest; (2) That the loan was to be repaid by the application of commissions earned by Soter through the sale of the cigarettes (two cents pre pack); (3) That in the event of the sale of the business, Soter agreed that the purchaser would assume his obligations under the contract in writing; (4) That upon termination of the contract by expiration or otherwise, Soter would immediately repay the balance of the loan then remaining unpaid; (5) That Unit reserved the right to remove the machines at any time without notice; (6) That whenever a breach occurred or whenever in the opinion of Unit a breach appeared imminent, it could immediately terminate the contract and collect not only the balance due upon the loan, but in addition damages in an
amount equal to the average monthly profits multiplied by the total number of months remaining under the contract; (7) That Soter authorized an attorney to appear and confess judgment for any amount due under the contract, with costs of suit and fifteen per cent added for collection fees. As additional security, Soter executed a judgment note payable on demand in the amount of $1000. No reference was made therein to the contract.
Soter died on January 16, 1960. He left a solvent estate sufficiently adequate to pay any existing claims or debts. As of the date of his death, the balance due Unit on the loan was $476.36.
In his will, Soter directed the executors of his estate to maintain the diner business and the real estate until such time as his sons would come to America from Albania to take over the business. Since, under existing circumstances, this appeared highly improbable, the Orphans' Court of Philadelphia County directed that ...