Cutler Corp. v. Latshaw

• Decision Date: 27 May 1953
• Citation: 374 Pa. 1,97 A.2d 234
• Parties: CUTLER CORP. v. LATSHAW.
• Court: Pennsylvania Supreme Court

97 A.2d 234

374 Pa. 1

CUTLER CORP. v. LATSHAW.

Supreme Court of Pennsylvania.

May 27, 1953

Suit by contractor for work and material in repairing owner's premises wherein contractor confessed judgment against owner under alleged warrant of attorney contained in contract and owner petitioned for rule to show cause why judgment should not be stricken. The Court of Common Pleas, No. 1, of County of Philadelphia as of June term, 1952, No. 4487, Peter F Hagan, J., made rule absolute and contractor appealed. The Supreme Court, No. 112, January term, 1953, Musmanno, J held that where form contract five pages in length contained specifications of work to be done and materials to be supplied on face side of contract, although each reverse side contained word ‘ specifications' with ‘ continued’ in parentheses, reference on face side of contract to ‘ conditions' on reverse side, among which supposed authority for warrant of attorney for confession of judgment was contained would not be accepted as acknowledgment of confession of judgment.

Order affirmed.

Leon S. Forman, Milton M. Bennett, Albert L. Bricklin and Bennett & Bricklin, Philadelphia, for appellant.

Arthur M. Soll, Philadelphia, for appellee.

Before STERN, C. J., and STEARNE, JONES, CHIDSEY, MUSMANNO and ARNOLD, Jj.

MUSMANNO Justice.

On November 20, 1951, Jennie M. Latshaw contracted in writing to pay the Cutler Corporation the sum of $6,456 for certain work to be done and material to be furnished in repairing her premises at 914 S. 49th Street, Philadelphia. Dissatisfied with the manner in which the work was being performed, Miss Latshaw ordered the employees of the plaintiff corporation to cease operation until defects in the work were corrected.

On July 23, 1952, the Cutler Corporation confessed judgment against Miss Latshaw in the sum of $5,238.56 under an alleged warrant of attorney contained in the contract. The defendant petitioned for a rule to show cause why the judgment should not be stricken from the record; the lower Court made the rule absolute; and the plaintiff appealed.

The contract consisted of five form sheets carrying certain printed matter. The face of each sheet began with a standardized identification of the parties and the designating of the plaintiff and defendant, respectively, as ‘ Contractor’ and ‘ buyer.’

Then followed in small type the wording:

‘ Upon your acceptance below, you are hereby requested by the undersigned owner of the installation premises, hereinafter called ‘ Buyer,’ to furnish and install the materials shown in the following specifications at the installation premises mentioned below (subject to conditions on reverse side.)'

In the middle of the sheet, in large type, appeared the single word: Specifications. Beneath this word, in handwriting, followed a list of the various items of work to be done and materials to be supplied by the plaintiff.

The reverse side of each sheet carried in very small type eight paragraphs, No. 6 of which spelled out a warrant of attorney with confession of judgment. Although each reverse sheet also carried the word, Specifications, with ‘ Continued’ in parentheses, no specifications were listed. This, in spite of the fact that the entire list of the specifications could not be contained on the first sheet and had to go over to other sheets. In fact, with the exception of the printing indicated, the reverse sides of the sheets were blank.

Did Miss Latshaw authorize a warrant of attorney and confession of judgment? In the case of Griffin Oil Co. v. Toms, 170 Pa.Super. 203, 85 A.2d 595, the plaintiff entered a judgment against the defendant on a warrant of attorney contained in an ‘ Equipment Agreement.’ This document was not signed by the defendant but it was attached to an ‘ Owner's Consent’ bearing the defendant's signature. The ‘ Owner's Consent’ acknowledged notice of the agreement and contained an assent to its terms and conditions. In affirming the lower Court's striking off the judgment, the Superior Court said:

‘ In a proceeding to strike off a judgment, only matters apparent on the face of the record will be considered. Peerless Soda Fountain Service Co. v. Lipschutz, 101 Pa.Super. 568, 571. On the present record it conclusively appears that defendant did not sign the agreement containing the warrant of attorney. An authority to confess judgment must be clear and explicit. Solazo v. Boyle, 365 Pa. 586, 76 A.2d 179. There was no authority for entering a judgment by confession against defendant who had not signed the warrant of attorney; a judgment by confession must be self-sustaining on the record.’

Equally in the case at bar the defendant did not sign the warrant of attorney-confession of judgment. The reference on the face side of the contract to the ‘ conditions' on the reverse side, among which was buried the supposed authority for a warrant of attorney, can hardly be accepted in a court of law as an acknowledgment of a confession of judgment. While the word ‘ condition’ may conceivably embrace almost any circumstance, upon which, or, because of which, a right is created or a liability attaches, it cannot be used to mean surrender of fundamental personal and property absolutes unless the word appears within a setting which warns of the potency of the capitulation being made.

A warrant of attorney authorizing judgment is perhaps the most powerful and drastic document known to civil law. The signer deprives himself of every defense and every delay of execution, he waives exemption of personal property from levy and sale under the exemption laws, he places his cause in the hands of a hostile defender. The signing of a warrant of attorney is equivalent to a warrior of old entering a combat by discarding his shield and breaking his sword. For that reason the law jealously insists on proof that this helplessness and impoverishment...