Appeal, No. 406, Oct. T., 1963, from order of County Court of Philadelphia, March T., 1963, No. 14575E, in case of Travelers Express Co. v. Julius Segall, individually and trading as Segall's Lunch. Order affirmed.
Alfred D. Whitman, for appellant.
Samuel C. Nissenbaum, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 203 Pa. Super. Page 222]
The defendant in this case filed a petition to open or strike off the judgment which had been entered against him by confession. The court below opened it, but refused to strike it off. The plaintiff appealed the order opening; no appeal was taken by the defendant from the order refusing to strike.
The parties had entered into a written agreement whereby the defendant was to sell the plaintiff's money orders, and transmit to it the proceeds less a commission for his services. The agreement contained a power of attorney to confess judgment "for such proceeds of the sale of the aforementioned money orders or moneys received for or on account of Company for whatever
[ 203 Pa. Super. Page 223]
amount as may appear to be undelivered ... and a copy of this Agreement and a statement of the balance Company believes to be then due shall be sufficient warrant and statement for the entry of said judgment."
Judgment was confessed against the defendant in the total amount of $2378.27 which included a 20% attorney's fee of $394.89. The agreement contained no specific amount or percentage of attorney's fee, and the plaintiff has greed to have fee of $394.89 stricken from the judgment.
The agreement contains no sum for which judgment may be confessed. Where the amount due is not stated in the instrument and cannot be ascertained by calculation from information which the instrument itself furnishes, a judgment cannot be entered by the prothonotary acting under the Act of February 24, 1806, P.L. 334, § 28, as amended, 12 P.S. § 739, but it is necessary for an amicable action to the filed which must state and liquidate the amount due. Connay v. Halstead, 73 Pa. 354 (1873); Better Bilt Door Co. v. Oates, 165 Pa. Superior Ct. 465, 468, 69 A.2d 425 (1949); Klein's Judgment by Confession in Pennsylvania, p. 76.
The judgment which the court below opened was confessed in the County Court of Philadelphia by virtue of the filing of the following: "Enter my appearance for plaintiff and defendants. Confess judgment against defendants in the amount set forth below upon the trust agreement attached hereto, upon the authority and in accordance with the terms of the warrant of attorney in said agreement. Assess plaintiff's damages sec. reg. Defendants and plaintiff entered into said trust agreement on or about December 7, 1962, under terms set forth therein. Defendants defaulted on March ...