41 Pa. Super. 42 | Pa. Super. Ct. | 1909
Opinion by
The judgment on the bond accompanying the mortgage was entered on March 12, 1907. By virtue of the condition in the bond relative to default in payment of any installment of interest for the space of thirty days the whole principal debt of
“After examining said statement, he stated that Mr. Dille could not be present, owing to a sale in bankruptcy. I asked him whether Mr. Dille was his attorney and he answered that he was not. I then asked him what had Mr. Dille to do with this matter, to which he answered, 'I do not want to pay any more money in until I get my deed.’ He said he would meet us again after seeing Mr. Dille. I told him that we would meet him any time, but that it would be at his own risk. Then Mr. Skelley and Mr. Agnew went out. At this meeting no money was produced.”
On the following day the plaintiff issued a fi. fa. on the judgment. On May 2, the appellant tendered him $1,261.50, and
This appeal is from the subsequent order discharging the rule to show cause. The question sought to be raised is as to the plaintiff’s right to enforce the stipulation as to attorney’s commissions.
Passing all technical questions as to the form of the rule to show cause, and as to the appellant’s right to a review of the court’s decision, it is apparent that a good deal depends.upon what took place at the meeting on April 29. If the appellant’s version is correct, it could be argued with much force that the issuing of the execution on the following day was an act of bad faith and that the principle applicable where the debtor has been misled by his creditor should be applied here. See Lewis v. Germania Savings Bank, 96 Pa. 86. On the other hand, if the version of the plaintiff’s attorney is correct, the appellant might have saved the attorney’s commission by paying the actual debt, interest and costs on that day, they being long overdue, and he had plain notice that any further delay would be at his risk.
Granting that the court might have found the facts as contended for by the appellant, it does not necessarily, follow that it was reversible error not to do so. His application was an appeal to the equitable jurisdiction of the court, whose duty it was to weigh the testimony, determine the facts, and exercise a sound discretion.in the premises. The presumption on appeal is always in favor of the decision of the common pleas upon such question, and its refusal to strike off the attorney’s commission will not be set aside unless this be so plainly erroneous as to
In view of the testimony and the facts which the judges of the common pleas could deduce from it, and the further fact that the tender did not fully cover the actual costs, we cannot say that there was a plain abuse of discretion in discharging the rule.
The appeal is dismissed at the cost of the appellant.