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CONTINENTAL SUPERMARKET FOOD SERVICE v. SOBOSKI ET UX. (06/20/67)

decided: June 20, 1967.

CONTINENTAL SUPERMARKET FOOD SERVICE, INC., TO USE,
v.
SOBOSKI ET UX., APPELLANTS



Appeal from judgment of Court of Common Pleas of Montgomery County, No. 62-9586, in case of Continental Supermarket Food Service, Inc. to the use of Commercial Banking Corporation, v. Henry F. Soboski et ux.

COUNSEL

John P. Yatsko, with him Fitzgerald & Yatsko, for appellants.

Ronald Robinson, with him Pearlstine, Salkin & Hardiman, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 210 Pa. Super. Page 305]

On October 3, 1962, defendants entered into an agreement with Continental Supermarket Food Service, Inc., for the purchase of a food freezer plan. They executed two judgment notes and a security agreement. On October 15, 1962, judgment was entered on one note in the amount of $1747.20 and it was assigned of record on January 9, 1963 to Commercial Banking Corporation, use-plaintiff. In the interim, defendants made one payment of $91.00 to Continental. Subsequently, Continental went out of business.

Execution was issued by the use-plaintiff and the court granted defendant's motion to open the judgment. A jury trial followed and the court directed a verdict in favor of Commercial. Testimony disclosed the food plan required Continental to supply defendants with "deluxe home delivery" of frozen food at discount prices and a food freezer. At the end of four years of monthly payments, the freezer was to belong to defendants "at no additional charge". Defendants testified the first two food shipments were in unrefrigerated vehicles and the food was in a "thawed condition". Subsequently, much of the food appeared slimy and discolored, had an offensive odor, and was not palatable. In December 1962, defendants stopped

[ 210 Pa. Super. Page 306]

    payments, refused to accept further shipments of food, and requested the freezer be removed.

In directing a verdict, the trial court concluded the obligation to purchase the freezer was severable from the agreement to purchase food and defendants' evidence of failure of consideration with respect to the food shipments was not a defense to the action on the promissory note. Defendants contend the obligation was not severable and failure of the food is a defense.

In determining whether a contract is entire or severable, the primary inquiry is whether the language employed in the contract clearly indicates the intention of the parties. Absent such clear indication, we are obliged to seek additional aids. Heilwood Fuel Co., Inc. v. Manor Real Estate Company, 405 Pa. 319, 175 A.2d 880 (1961); Producers Coke Company v. Hillman, 243 Pa. 313, 90 Atl. 144 (1914). Since the promissory note, the instrument in suit, does not recite the consideration for which it was given, reference must be made elsewhere to determine intent.

The document which most strongly indicates the intention of the parties is titled "Customer's Contract Verification for Food and Freezer" and was executed on November 22, 1962 by Mrs. Soboski and Joseph Demetrius, an authorized ...


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