Citation Numbers: 98 Pa. Super. 111
Judges: OPINION BY LINN, J., January 29, 1930:
Filed Date: 11/12/1929
Status: Precedential
Modified Date: 1/13/2023
Argued November 12, 1929. The question is whether plaintiff should have execution on his judgment. It was entered on a judgment note executed by Giordana Fiorini dated September 3, 1926, payable one day after date. On the note was endorsed the following agreement:
"`Mildred, Pa., Sept. 3, 1926.
This note is given to secure John Durso for cash payment of two thousand dollars on the real estate of Mrs. Giordana Fiorini in Mildred, Pa., and to be destroyed when deed is executed by said Giordana Fiorini and her husband, John Fiorini, of said real estate to said John Durso and in case deed is not made within 30 days of now this note to be what it purports on its face. This agreement signed and sealed the day and year above written.'
Mrs. Giordana Fiorini (Seal) John Fiorini (Seal) John Durso (Seal)"
That instrument was part of a transaction that began August 16, 1926, when the plaintiff, in writing, agreed to purchase from Mrs. Fiorini, certain real *Page 114 estate in Mildred, Pennsylvania, for $10,000, — $300 to be paid down, and $1,700 on delivery of deed, balance to be secured by a mortgage or note. Settlement being delayed to obtain a survey of the premises for use in drawing the deed and mortgage, the vendor demanded payment of the $1,700 before delivery of the deed; the vendee complied with the demand on receiving security for the repayment of the $2,000 paid on account in the event of default by the vendor; the judgment note and agreement of September 3 were accordingly executed. No deed was delivered within 30 days after September 3, 1926. On October 7, 1926, plaintiff entered judgment on the note, and on November 15 issued a fi. fa. On November 26, defendant instituted this proceeding by petition for a rule to show cause why the judgment should not be opened to enable her to defend, why execution should not be stayed, and why the judgment and execution should not be set aside and stricken off. A rule to show cause why judgment should not be opened and execution stayed was granted. The complaint, speaking generally, was that to permit the enforcement of the judgment would be a fraud on her, on the ground that plaintiff, and not she, was in default in performing the agreement of purchase and sale; that she had been, and still was, ready to convey, and that plaintiff had refused to perform. An answer, asserting failure of consideration, was filed, depositions were taken, and after argument, the court opened the judgment and awarded an issue for trial, the details of which need not now be stated.
At trial the jury was instructed to answer certain interrogatories that were submitted to it; they were answered and, with the answers, were received by the court and made part of the record, but no general verdict was rendered. The learned trial judge then made the following order: "Accordingly, to meet the equitable requirements of the case and to make effective *Page 115 the verdict of the jury, the judgment opened, the execution issued thereon are set aside and stricken off, at the costs of the plaintiff." Plaintiff appeals from that order and assigns it for error.
Throughout the transaction both parties were represented and advised by the same attorney-at-law. He prepared the agreement of sale, the judgment note and agreement quoted above; he was instructed by both and undertook to prepare the deed for execution by the vendor and the purchase money mortgage to be executed by the vendee and to have both executed and recorded, (see Lawall v. Groman,
The evidence shows that the consideration has not failed, the vendor being ready and willing to perform her agreement. She did more than she was required to do in restoring the building after the fire. See Watkins v. Neff,
Now as the agreement was that the vendee should have security during the period preceding the preparation of the title papers, and as the period has not yet expired, in consequence of the conduct of the parties, as appears by the evidence, the vendee is still entitled to the security; but, because there is no default to mature the debt, he is not entitled to execution. If a vendor is not in default, a vendee cannot recover hand-money: Sanders v. Brock,
There was error in striking off the judgment; it was apparently regular on its face and no irregularity has been pointed out; in such circumstances judgment may not be stricken off: Pacific Lumber Co. v. Rodd,
The order striking off the judgment is reversed; the judgment and proceedings thereon are reinstated, and the record is remitted to enable the court to enter an order restraining the plaintiff from having execution on the judgment until such time as it shall be established that defendant is in default in the performance of the contract of sale. Neither party shall have costs from the other in this proceeding.
Harrison v. Soles , 6 Pa. 393 ( 1847 )
Feagley v. Norbeck , 127 Pa. 238 ( 1889 )
Integrity Title Insurance, Trust & Safe Deposit Co. v. Rau , 153 Pa. 488 ( 1893 )
National Furniture Co. v. McClintock , 162 Pa. 141 ( 1894 )
Lawall v. Groman , 180 Pa. 532 ( 1897 )
Pacific Lumber Co. v. Rodd , 287 Pa. 454 ( 1926 )
Watkins v. Neff , 288 Pa. 314 ( 1927 )
Dluge v. Whiteson , 292 Pa. 334 ( 1928 )
Romm v. Lobosco Et Ux. , 95 Pa. Super. 373 ( 1928 )
Lewis v. Linton , 207 Pa. 320 ( 1904 )
Sanders v. Brock , 230 Pa. 609 ( 1911 )