Gallagher v. Stern , 8 Pa. Super. 628 ( 1898 )

Opinion by

W. W. Pouter, J.,

We are asked in this case to review the discretionary act of the court below in refusing to open a judgment entered upon a scire facias sur mortgage. The application to open is made by a terre-tenant, who took title at a sheriff’s sale of the land, at which notice of his claim was given by the present plaintiff.

The mortgagee was a creditor of the mortgagor by virtue of the mortgage and for certain merchandise sold. Pending this suit on the mortgage, they entered into a written agreement, in October, 1893, by which, and by a written power, Eugene Raymond, Esq., the attorney at law of the plaintiff, was made the attorney in fact of the defendant, with authority to collect the rents of the real estate covered by the mortgage, and to apply the net proceeds thereof (after paying taxes, water rent and repairs) to the payment, first, of the merchandise account of the plaintiff, and, second, to the interest on the mortgage. Subsequently, it is alleged by the plaintiff, the written agreement was altered by parol, whereby additional merchandise credit was given by the plaintiff to the defendant on condition that the rents aforesaid should, as collected, be applied in discharge of the credit thus subsequently given, and of the interest on the mortgage. This course was followed as the evidence shows. Finally, the rents being insufficient to pay both the merchandise indebtedness and the interest on the mortgage, and the defendant having been deprived of his real estate by sheriff’s sale, judgment yms entered on the mortgage held by the plaintiff.

The terre-tenant attempted to disprove the supplemental agreement set up, and called the defendant (the mortgagor), who denied that he ever made it. His testimony stands alone to support the denial, whereas three or more witnesses, called by the plaintiff (who furnish a clear preponderance of evidence), support it in terms and with positiveness.

That a written agreement may be altered or supplemented by parol, cannot, as a proposition of law, be doubted : Malone v. Dougherty, 79 Pa. 46; McCauley v. Keller, 130 Pa. 53. On the facts above stated in epitome, after a careful reading of the whole of the testimony, we can find nothing upon which to hold that the court below unwisely exercised their discretion in refusing to open the judgment.

The terre-tenant further complains that the judgment includes an .attorney’s commission of excessive amount. In a case such as this, there is no arbitrary rule fixing the rate of compensation for the services of an attorney. The amount entered as part of the judgment was authorized by the terms of the mortgage, and was not found by the court below to be unreasonable.

There was some evidence that the counsel for the terre-tenant expressed a willingness to pay any interest due, and even the principal of the mortgage, before the judgment was entered, and that, pending the rule to open, a tender was attempted to be made. In point of fact, however, the full amount, to which the plaintiff was legally entitled, was not admitted or tendered; and the tender that was attempted, was only made after the taking of the depositions on the rule was in progress. These facts do not compel a reduction of the attorney’s commission.

There is nothing in the record leading us to disturb the judgment of the court below, and it is therefore affirmed.