Appeal, No. 196, Jan. T., 1963, from order of Court of Common Pleas of Delaware County, Sept. T., 1956, No. 285, in case of Girard Trust Corn Exchange Bank, successor by merger to National Bank of Narberth, v. Francis X. Sweeney and Barbara Sweeney. Order affirmed.
Francis J. Lynch, with him Elmer L. Menges, and Reilly and Pearce, for appellant.
Fronefield Crawford, with him Crawford & Frazier, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE JONES
This appeal attacks the validity of an order of the Court of Common Pleas of Delaware County which directed the opening of a judgment entered upon a note which contained a warrant of attorney authorizing the entry of judgment.
Beginning in December 1956, Girard Trust Corn Exchange Bank, successor by merger to the National Bank of Narberth (Bank) and Francis X. Sweeney and Barbara Sweeney, then husband and wife, engaged in a number of loan transactions wherein the Bank loaned various amounts of money to the Sweeneys. So far as presently pertinent, the Bank made four loans to the Sweeneys: January 17, 1957 - $5,000; May 3, 1957 - $3,000; September 27, 1957 - $19,000; September 17, 1957 - $9,000. All the borrowings were upon judgment notes signed by both Sweeneys and the collateral for such loans consisted of 50 shares of American Telephone & Telegraph Company common stock registered in the names of both Sweeneys, 365 shares of Ex-Cell-O Corporation common stock registered in the name of Barbara Sweeney alone and 421 shares of Ex-Cell-O Corporation common stock registered in the names of both Sweeneys. In connection with the $9,000 loan on September 17, 1957 a judgment note, executed by both Sweeneys, was delivered to the Bank in the amount of $9,000, payable one day after date with interest, costs and 10% collection fee. This note, which was entered of record in the Court of Common Pleas of Delaware County on September 26, 1957, contained the following provision: "As security for this note, whether matured or unmatured, the holder hereof shall continuously have a lien upon any and all funds, stocks, bonds, notes, money or other property, at any time in its custody."
Sometime thereafter, the Sweeneys separated and later were divorced. On March 5, 1959 - when Sweeneys were separated but not divorced - Francis Sweeney, then in Ohio, wrote a letter to the Bank in which he advised the Bank that a buyer had not been found for Sweeney's property in Radnor, Pa. and that it did not seem prudent "to continue the expense of our collateral loan" and, therefore, he directed the Bank of liquidate
the common stock held as collateral, to pay the principal and interest on three notes to the date of settlement, allow the "mortgage note on 183 Hillside Circle, Villanova", (obviously, the $9,000 note of September 17, 1957), to remain and to forward the Bank's check for the balance of the proceeds of the sale.
Acting in accordance with such instructions, the Bank in March, 1959 sold all the stock held as collateral and received from the sale thereof $46,324.08 out of which $27,251.37 was applied toward payment of three notes, viz., $5,000 note of January 17, 1957, $3,000 note of May 3, 1957 and $19,000 note of September 27, 1957. The Bank transmitted to Francis Sweeney the balance of $19,072.71 and retained the judgment note entered of record against both Sweeneys as a lien against any real ...