Appeal from judgment of Court of Common Pleas No. 7 of Philadelphia County, March T., 1960, No. 1778, in case of Howard Dunn, to use of The Federation of Jewish Agencies, to use of Russell C. Hughes v. Michael Orloff and Miriam Orloff, his wife.
Melvin Lashner, with him Stephen A. Cozen, and Adelman & Lavine, for appellants.
Gerald A. Gleeson, Jr., with him Robert L. Trescher, Edward D. Slevin, and Montgomery, McCracken, Walker & Rhoads, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
This appeal lies from a judgment entered on a directed verdict by the Court of Common Pleas No. 7 of Philadelphia County.
This is an action of assumpsit upon a $25,000 judgment note -- dated April 8, 1960 and payable upon demand -- which was given by Michael Orloff and Miriam Orloff to Howard Dunn. Judgment by confession was originally entered on the note on April 12, 1960; thereafter, on January 31, 1961, the judgment was marked to the use of The Federation of Jewish Agencies and, on the same day, by it to the use of Russell C. Hughes.*fn1
Approximately a year later, damages were assessed on the judgment and an execution issued thereon. Within a short time thereafter, the appellants petitioned to open the judgment; the gravamen of that petition was that, prior to the execution of the judgment note, the appellee had orally agreed with appellants that, if and when Orbros, Inc. -- a corporation owned by the husband-appellant and his cousin -- repaid $5,000 to the appellee, the latter would return the note to appellants; that more than $5,000 had been repaid on account of the indebtedness; that, despite the oral agreement, appellee had not returned the note. By way of answer, the appellee (a) denied that he had ever entered into any such agreement with appellants, and (b) pointed out that, when the note was given, Orbros, Inc., then virtually insolvent, was already indebted to him in the amount of $20,000, and that the note was given to secure
the existing indebtedness of $20,000 as well as the additional $5,000 then advanced to appellants.
Prior to trial -- and 16 months after the judgment was opened -- appellee filed a motion for judgment on the pleadings asserting that, under the parol evidence rule, the introduction of any evidence of the alleged oral agreement would be barred. This motion was denied by the court below on the ground that this question could have been raised by the appellee in opposition to the appellants' petition to open the judgment; that, having failed to do so at that time and having failed to appeal the adverse ruling, appellee could not in this manner collaterally attack the order opening the judgment. On appeal, we affirmed: Dunn v. Orloff, 414 Pa. 636, 201 A.2d 432 (1964).
The case was then set for trial. A jury trial was held on September 28 and 29, 1964. The appellee presented his own testimony in which he identified the note, admitted payments on account of principal totaling $12,933.48, and stated the amount remaining due on the principal was $12,066.52. Counsel for the parties stipulated that, if this amount was found to be due, the interest thereon amounted to $3,245.89 and, further, that the appellee would be entitled, in accordance with the terms of the note, to a collection fee of $1,899.98.
In presenting their case, appellants presented three witnesses -- the husband-appellant, Walter Orloff and Sidney Orlofsky -- who would testify that, prior to execution and delivery of the judgment note, appellee orally agreed to return the note to appellants when $5,000 had been repaid on the note. On objection, this testimony was excluded on the ground that its reception into evidence would violate the parol evidence rule. Thereupon, appellants offered no additional testimony and a verdict was directed in favor of appellee in the amount of $17,122.39. Thereafter, motions for judgment
n.o.v. and a new trial were denied, judgment was entered on the ...