Appeal from order of Court of Common Pleas of Delaware County, No. 1859 of 1964, in case of Brunswick Corporation v. Benjamin J. Levin and Key Enterprises, Inc.
John P. Trevaskis, Jr., with him Trevaskis, Doyle, Currie, Nolan & Bunting, for appellant.
Garland D. Cherry, with him Kassab, Cherry, Curran and Archbold, for appellee.
Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
On November 4, 1965, Brunswick Corporation, appellee, received a jury verdict in the amount of $19,596.65 against both of the named appellants. The action arose out of a wrongful distraint by the appellants as landlords. On March 14, 1967, an appeal was filed to our court. On appeal, we dismissed the judgment against Mr. Levin and cut the verdict against Key Enterprises in half. Brunswick Corp. v. Key Enterprises, Inc., 431 Pa. 15, 244 A.2d 658 (1968). In that opinion, filed August 6, 1968, we recounted the following facts:
"On December 22, 1961, appellee, a vendor of laboratory equipment, entered into a deferred payment sale agreement with Community Laboratories, Inc., to sell laboratory equipment for $13,128.21. The sum of $1,049.97 was paid pursuant to that agreement, but no additional payments were made to appellee by Community.
"On March 1, 1962, Community leased a store from appellant, Key Enterprises. The lease was for a term of three years and provided for the payment of rent at monthly intervals. Appellant Benjamin Levin, an officer and minority stockholder of Community (lessee) was also president of the corporate landlord.
"On September 14, 1962, in furtherance of a distraint warrant obtained by the landlord, a constable levied upon the goods on the laboratory premises posting a notice of sale. Among the goods distrained upon by the landlord was the equipment delivered by appellee to Community. Since there were no other bidders at the constable's sale on September 25, 1962, Key Realty Co., a subsidiary of Key Enterprises, obtained the equipment. The sum of $1,445 was paid to the constable by check of Key Realty Co. signed by Benjamin Levin, representing payment for the equipment distrained
upon. After payment of the constable's costs, the proceeds were paid over to Key Enterprises. The property still remains upon the premises of the landlord.
"The jury found that this action on the part of the landlord constituted an illegal distraint under § 313 of The Landlord and Tenant Act of 1951 (Act of April 6, 1951, P. L. 69, § 313, 68 P.S. § 250.313) because no rent was due at the time that the landlord distrained upon the property. The jury based its verdict on testimony which indicated that Benjamin Levin, acting in his capacity as principal officer of the corporate landlord, orally agreed to postpone the payment of rent until Community became a going concern and since that event never occurred no rent was due and owing."
While the appeal was pending in this court, Brunswick sent Community a bill for $291.17, the sum then due on the lab equipment. Benjamin Levin, seizing the opportunity, mailed back a check for the requested amount on which he had typed: "In full settlement of all claims and litigation ...