162 Pa. 100 | Pa. | 1894
Opinion by
A rule to show cause why the judgment should not be opened, was granted on an affidavit which, under a well settled rule of practice, would have been held insufficient to prevent judgment in an action of assumpsit on the note. The only material averment in the affidavit was that the defendant did not owe the plaintiff “the sum of three thousand one hundred and fifty dollars, the sum for which judgment was entered and execution issued.” On the hearing of the rule the judgment was stricken off. It was entered by virtue of a warrant of attorney contained in the note and was regular on its face. It was admitted by the defendant that the plaintiff loaned to him the sum for which the note was given and that he had paid but four hundred dollars on account of the loan. It was conceded by the plaintiff that the defendant was entitled to a credit on the judgment for the amount so paid. It was clear therefore that the defendant owed the plaintiff on account of the loan twenty-six hundred dollars with interest thereon from the time the judgment was entered. But it appears that the plaintiff held a paper bearing the same date as the note and signed by the defendant, in which it was stipulated that he should pay on the first day of eacli month at least two hundred dollars on account of the loan, and pay the whole amount of it “ on or before the first day of June, 1894,” and that if he failed to make the monthly payments, he should “ transfer and assign his license, together with all the stock and fixtures of his saloon,” and “peaceably deliver possession of the same” to any person or persons the plaintiff might designate. The learned court below thought this paper showed that the loan was made for a purpose condemned by the law, and on that ground struck off the judgment entered on the note given to secure it. Was the action of the learned court in reference to the judgment justified by the writing on which it was founded? It seems to us that it was not. We cannot assent to a construction of the wilting in question which renders the
This judgment was an independent security for the loan. The transfer which the defendant agreed to make in case he failed to pay the monthly installments was obviously intended as an additional security for it. If it be conceded that the agreement in relation to the transfer of the license wgs invalid, non constat that the loan or the judgment was. The loan, as we have seen, was made for a lawful purpose and the judgment was a lawful security for it. Another security collateral to the loan might be condemned as violative of a statute or rule of public policy without impairing the valid security, or affecting the remedies upon it.
We have considered the case upon the evidence taken on the rule to show cause, although it may not have been necessary to do so in view of the general principle that a judgment will not be summarily stricken off for matters dehors the record. We cannot find in the evidence any warrant for the conclusion that the plaintiff has acquired or sought to acquire an interest in the defendant’s business or violated any provision of the license
The specifications of error are sustained.
The order of October 27,1893, striking off the judgment is reversed.