Summary
In Sebastianelli v. Frank, 108 Pa. Super. 550, 165 A. 664, there was a separate guaranty against defects in material or workmanship issued by the manufacturer, the RCA Victor Company.
Summary of this case from Silverman v. Samuel Mallinger Co.Opinion
March 7, 1933.
April 17, 1933.
Judgments — Opening of — Evidence — Discretion of court — Abuse.
On a petition to open a judgment entered by confession on a warrant of attorney contained in a bailment lease, it appeared that the plaintiff, a dealer, leased to the petitioners a radio and that they agreed to pay certain monthly installments. The radio was referred to by its trade name and the lease contained no guaranty or warranty. The petitioners failed to make certain of the payments and the plaintiff entered judgment on the lease. In the petition to open the judgment it was alleged that the radio did not function properly. The evidence failed to show any defect in material or workmanship. It did appear, however, that a motor in the neighborhood and intermittent static due to atmospheric conditions interfered with the machine.
In such case the court below did not abuse its discretion in refusing to open the judgment.
Where, on a petition to open a judgment entered by confession, the judgment creditor is called by the petitioners and testifies as if under cross-examination, the petitioners have the right later to contradict his evidence and show that his statements were not true. But insofar as they fail to do so they are concluded by his testimony.
Appeal No. 41, February T., 1933, by defendants from decree of C.P., Lackawanna County, November T., 1921, No. 327, in the case of Ida Sebastianelli, doing business as The Italian Music Store v. Specioso Frank and Minnie Frank, his wife.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Affirmed.
Petition to open judgment. Before LEWIS, J.
The facts are stated in the opinion of the Superior Court.
The court discharged the rule. Petitioners appealed.
Error assigned, among others, was the order of the court.
D.H. Jenkins, for appellants.
J. Harry Morosini, for appellee.
Argued March 7, 1933.
This appeal is from an order refusing to open a judgment confessed by virtue of a warrant of attorney contained in a bailment lease.
The bailment lease covered a radio cabinet. It authorized a confession of judgment for the entire rental charge in case the bailee failed to pay the monthly installments called for in the agreement. The affidavit of default set up a failure to pay such installments after the first two, and judgment was entered for the balance of the rental under the agreement.
The subject matter of the contract was a "Victor Radio — Model R.E. 57." The bailment lease contained no guaranty or warranty whatever. It expressly provided "that the whole of the agreement between the firm and myself, in relation to said articles of property, is set forth in this writing." It differs consequently, from the case of Plympton Cabinet Co. v. Rosenberg, 96 Pa. Super. 330, (195 April Term 1929), where there was an express agreement that the refrigerating case "must prove satisfactory in every way or full purchase price will be refunded," which was held to be a warranty, and in the circumstances there presented, required the opening of the judgment (p. 333). This case is more like the appeal in 196 April Term, 1929, decided in the same opinion, where there was no warranty and the refusal of the court below to open the judgment was affirmed.
The defendants called A. Sebastianelli, husband of the plaintiff, who conducted the business, as if under cross-examination. While they had the right to contradict his evidence and show that his statements were not true, in so far as they failed to do so they are concluded by his testimony: Dunmore v. Padden, 262 Pa. 436, 439, 105 A. 559; Mathey v. Flory Milling Co., 283 Pa. 331, 337, 129 A. 109; Cherry v. Union Natl. Bank, 87 Pa. Super. 114, 116.
The evidence failed to show any defect in material or workmanship, but rather outside interference due to a motor in the neighborhood, which was rectified, and intermittent static due to atmospheric conditions. The separate guaranty against defects in material or workmanship, presented at the hearing by the defendants, was the obligation of the R.C.A. Victor Company, the manufacturer, and not of the plaintiff, the dealer, and could not be enforced against the latter.
The contract was, strictly speaking, a bailment, not a sale. But there was, in any event, no implied warranty by the dealer, as contended by appellants, for the agreement related to a "specified article under its trade name." See Sales Act of 1915, P.L. 543, sec. 15 (4th), p. 547.
On full review of the evidence we find no abuse of discretion in the refusal of the court below to open the judgment.
The order is affirmed at the costs of the appellants.