Appeal, No. 433, Oct. T., 1962, from order of Court of Common Pleas of Elk County, Dec. T., 1961, No. 95, in case of Commonwealth Bank and Trust Company v. Clyde Keech et ux. Order reversed.
F. Cortez Bell, with him John H. Cartwright, and Bell, Silberblatt & Swoope, for appellants.
Norbert J. Pontzer, with him George F. Taylor, and Pontzer & Pontzer, and Taylor, McNaugher & Duerring, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 201 Pa. Super. Page 286]
The defendants have appealed from the action of the court below in refusing to open a judgment entered against them by confession on a motor vehicle installment sales contract. The court considered the matter on petition, answer, stipulation and depositions.
The defendants on March 29, 1961, purchased a 1961 Ford from Merle C. Freeborn, giving a 1957 Ford in trade and executing an installment sales contract for the balance of the purchase price. Freeborn assigned the contract to Industrial Discount Company which financed the sale. That company later reassigned the contract to the plaintiff bank, which entered judgment on it against the defendants on January 22, 1962.
Freeborn had obtained the 1961 Ford which he sold to the defendants from Ferris and Forbes, Inc., a Ford dealer in Bolivar, New York. Freeborn was not acceptable
[ 201 Pa. Super. Page 287]
to Ford Motor Company as a sub-dealer for Ferris and Forbes, but he had agreed to purchase and pay for the automobiles which Ferris and Forbes furnished him to sell, payment to be made by him after he had sold them to customers. He had sold six such cars, including that sold to the defendants, for which he had not paid Ferris and Forbes at the time of his death on April 14, 1961. Ferris and Forbes have taken no legal action to recover any of these cars. Six other cars remained on the Freeborn floor unsold and were voluntarily returned to Ferris and Forbes by the Freeborn estate.
The husband-defendant drove the car for some days following his purchase from Freeborn using temporary plates and then drove to Freeborn's place of business for the 1,000 mile check-up. Finding it closed because of Freeborn's death, he drove on to the place of business of Ferris and Forbes, Inc., in Bolivar, New York, and had the car checked. Ferris and Forbes did not at that time ask him to return the car to them. They claim that they did not then know it was one of the cars which they had delivered to Freeborn, but on the same day they learned that Freeborn had committed suicide and that Keech had obtained one of their cars from him.
Ferris and Forbes, who held a New York certificate of title for the car, refused to give a bill of sale or a certificate of title to the defendants because of Freeborn's failure to pay for the car. On October 2, 1961, the defendants consulted counsel who made various ...