39 A.2d 266 | Pa. Super. Ct. | 1944
Argued April 19, 1944. Appellant instituted assumpsit to recover for the breach of obligations allegedly assumed by defendant when it became the assignee of a bailment lease. The appeal is from the judgment n.o.v. entered for defendant after a verdict had been directed in appellant's favor. *33
I.V. Wolfe, trading as Drey Street Motor Company, as lessor, entered into a bailment lease agreement with appellant, as lessee, of a used Chrysler automobile on July 11, 1930. The lease was a standard printed instrument issued by defendant finance company and included a judgment note in negotiable form, also executed by appellant to the order of Drey Street Motor Company. The note contains an explicit reference to the transaction: "This note is given to cover deferred installments or rental under a lease of even date for a motor car." On the same day the note and lease were executed, I.V. Wolfe, in consideration of an advance of the total unpaid rentals less a financing charge, assigned all his right, title, and interest in the lease and in the car to defendant, and simultaneously endorsed the note to defendant, which at that time was ignorant of any irregularities in the transaction between appellant and Wolfe. Defendant, in this assignment, did not expressly assume the obligations of the lease.
The bailment lease contained a clause in which lessee acknowledged that the car had been delivered to him in good condition, and there was an agreement between the original parties that the title to the vehicle was in the lessor and was there to remain until the expiration of the one year term. The lease also contained the usual clause giving the lessee the option to purchase the car at the end of the term for the nominal sum of one dollar, provided the car were first surrendered to the lessor or his assigns and if there had been compliance with all the other terms of the agreement.
At the time of the transaction between appellant and Wolfe, the automobile bargained for was in Wolfe's garage in an extensively damaged condition and had been left there by its real owner for repairs. Appellant was not apprised of the fact that Wolfe had no proprietary interest in the car, but he did know that it was not in good running order, and Wolfe had agreed *34 with him that all necessary repairs would be made at a cost included in the rental charges. After the lease was signed, the car remained where it was, since it was in no condition to be driven away, until the true owner removed it several months later. Neither appellant nor defendant ever received a certificate of title to the car from Wolfe, as Wolfe never owned the vehicle.
In his statement of claim, appellant averred payment for the car by alleging that defendant had confessed judgment against him for the face amount of the note and that the judgment had subsequently been revived and later paid and satisfied of record. Appellant claimed that defendant thereby became bound, as assignee of the lease agreement, to transfer to him a good title to the automobile purported to have been leased or to respond in damages for failing to do so. Neither the statement of claim nor the affidavit of defense alleged any intermediate proceedings other than the revival and the satisfaction of the judgment, and the defense of res adjudicata was not raised in defendant's pleadings as a bar to the action.
Appellant, as a part of his case in chief, introduced the record of the judgment confessed against him in 1931, and a revival thereof in 1936. This record shows that after an unsuccessful attempt had been made to strike off the judgment(Drey Street Motor Co. for use v. Nevling,
"In order to make a matter res adjudicata there must be a concurrence of the four following conditions: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and of parties to the action; (4) identity of the quality in the persons for or against whom the claim is made":Siegfried v. Boyd,
Section 16 of the Practice Act of 1915 as amended by the Act of April 22, 1929, P.L. 627, § 4, 12 Pa.C.S.A. § 452, which provides, so far as now material, that in assumpsit the defendant shall not "be permitted at the trial to make any defense which is not set forth in the affidavit of defense," does not preclude the consideration of res adjudicata as a defense to the present action. The provisions of this section of the Practice Act are for the benefit of litigants as an aid to the orderly definition of the issues in a case and to prevent the element of surprise at a trial, but they may be waived by a party's failure to insist upon his rights. McBride v. W. Pa. Paper Co.,
Judgment affirmed. *38