41 Pa. Super. 108 | Pa. Super. Ct. | 1909
Opinion by
Judgment was entered against the appellant and another by confession under a warrant of attorney contained in a bond. The bond was in the penal sum of $500 and the warrant therein contained authorized the confession of judgment “after one or more declarations filed,” in favor of the plaintiff, for the amount of the penalty, with “waiver of inquisition and condemnation of any property that may be levied upon by virtue of any execution which may issue forthwith upon failure to comply with the conditions hereof.” The plaintiff filed a declaration, or statement, setting forth the execution of the bond, the amount of the penalty thereof and the condition of the bond, which was that one Edwards, an employee of the plaintiff, should pay over to the plaintiff upon demand, any and all moneys which he received in the course of his employment, and, further, averred that Edwards had received from certain persons named, respectively, specific sums of money, aggregating $361.87, and averred damages in the amount of the penalty of the bond, that is, $500. A copy of the bond was to the statement attached. With the statement was filed a confession of judgment by a duly qualified attorney appearing on behalf of the defendants, by the defendants, and “in favor of the plaintiff in the sum of $415.53, liquidated as follows:
Amount of bond ...................... $500.00 '
Due on same as above .................. $361.87
Interest from January 10, 1907........... 33.88
Attorney’s commissions 5%----:......... 19.78
Total $415.53
That the judgment under the warrant of attorney should have been entered in the amount of the penalty of the bond, to be released upon payment of the amount actually owing under the condition of the instrument, is too well settled to require discussion. The confession of judgment was, in terms, “in favor of the plaintiff in the sum of $415.53, liquidated as follows.” The judgment thus appears to be liquidated in 'that amount, and yet when the attorney who confessed judgment' proceeded to liquidate it he stated, as part of that liquidation, that the amount of the bond was $500. There thus appeared within the confession of judgment itself a statement of all the facts which clearly indicated what the formal judgment ought to be. This also appeared in the statement of the plaintiff and the copy of the bond to which the confession of judgment was attached. There thus appeared upon the record everything necessary to determine what the amount of the judgment and the form thereof ought to be, so that it is not necessary to go outside of the record to find the materials which would warrant an amendment of the record, if an amendment is allowable. There was in this case no failure to comply with any condition precedent in order to authorize the entry of a judgment upon the warrant. The statement filed by the plaintiff clearly set forth the amount for which the appellant was legally
The appellant contends, under the second branch of his rule, which sought to strike down the liquidation of damages contained in the confession of judgment and to deprive the plaintiff of any right to execution upon his judgment, that upon such a bond as that which contained the warrant upon which this judgment was confessed, all that a plaintiff can do is enter a cautionary or interlocutory judgment, for the purpose of a lien, and that before he can become entitled to execution he must issue a scire facias or writ of inquiry, and have the damages ascertained. This contention may be correct when the. bond is given to secure the performance of a collateral condition, for the breach of which the measure of damages is contingent and uncertain, but it can have no application when the damages arise from the failure of a party to pay over specific sums of money. In such a case, the measure of damages is neither contingent nor uncertain. That a judgment entered on
The order of the court below is affirmed and the appeal dismissed; and the amendment prayed for by the appellee is allowed.