Frank v. McCafferty Ford Co.

• Decision Date: 15 June 1960
• Docket Number: No. 7,No. 9,9,7
• Citation: 161 A.2d 896,192 Pa.Super. 435
• Parties: Anthony J. FRANK and Margaret E. Frank v. McCAFFERTY FORD COMPANY, Appellant in Appeal, and Broad Motors Company, Appellant in Appeal 9, 7.
• Court: Pennsylvania Superior Court

Page 896

161 A.2d 896

192 Pa.Super. 435

Anthony J. FRANK and Margaret E. Frank v. McCAFFERTY FORD COMPANY, Appellant in Appeal No. 9 and Broad Motors Company, Appellant in Appeal No. 7.

9, 7.

Superior Court of Pennsylvania.

June 15, 1960.

Rehearing Denied in No. 7 July 12, 1960.

Albert L. Bricklin, Bennett & Bricklin, Philadelphia, for McCafferty ford co.

Goncer M. Krestal, Paul D. Guth, Blank, Rudenko, Klaus & Rome, Philadelphia, for Broad Motors Co.

Thomas S. Howland, Howland and Hess, Philadelphia, for appellees.

Before RHODES, P. J., and GUNTHER, WRIGHT, WOODSIDE, ERVIN, WATKINS and MONTGOMERY, JJ.

WOODSIDE, Judge.

Broad Motors Company is appealing from a judgment entered against it for the sum it received for the sale of a stolen automobile.

In January of 1958 Broad Motors Company, warranting good title, sold a used 1957 Ford Thunderbird automobile to McCafferty Ford Company for a consideration of $2,400. In February, 1958, McCafferty Ford Company, warranting good title, sold the automobile to Anthony J. and Margaret E. Frank for a consideration of $3,056.50.

In July of 1958 agents of the Federal Bureau of Investigation informed the Franks that the automobile was a stolen car. The Franks immediately notified their vendor, McCafferty Ford Company, who immediately notified its vendor, Broad Motors Company.

Later that month Allstate Insurance Company informed the Franks that it had title to the automobile, which had been stolen from its assignor. The Franks immediately notified McCafferty Ford Company who immediately notified Broad Motors Company.

Allstate Insurance Company thereafter filed a complaint in replevin with bond against the Franks in the Court of Common Pleas of Montgomery Court. The Franks immediately notified McCafferty Ford Company and requested it to appear and defend title in the action. McCafferty Ford Company immediately notified Broad Motors Company and requested it to appear and defend title in the action. Neither company appeared, and a default judgment was entered in favor of Allstate Insurance Company.

Anthony J. and Margaret E. Frank then filed a complaint in assumpsit against McCafferty Ford Company in Philadelphia Municipal Court for breach of warranty of title. McCafferty Ford Company joined Broad Motors Company as an additional defendant, pursuant to Rule 2252(a) of the Pennsylvania Rules of Civil Procedure, 12 P.S.Appendix.

The case was tried before Judge John Robert Jones, sitting without a jury. Over the objections of both defendants, the plaintiffs introduced into evidence as an exhibit an exemplified copy of the proceedings in replevin. Decision was rendered for the plaintiff against the defendant in the amount of $3,056.50 plus interest, and for the defendant against the additional defendant in the amount of $2,400 plus interest.

The defendant filed exceptions to the findings of the trial judge; the additional defendant moved for judgment n. o. v., or in the alternative, for a new trial. The trial judge dismissed the defendant's exceptions and denied the motions for judgment n.o.v. and for a new trial.

Broad Motors Company appealed from the entry of judgment against it. McCafferty Ford Company then appealed from entry of judgment against it.

Under section 2-312 of the Uniform Commercial Code of April 6, 1953, P.L. 3, 12A P.S. § 2-312, there was in the contract of sales involved in this case a warrant by the sellers that the title conveyed was good and its transfer rightful.

The defendant admits its liability and appealed only to protect itself against a possible decision here favoring the additional defendant.

Over a hundred years ago, our Supreme Court said in Ives v. Niles, 1836, 5 Watts 323, 325, '* * * no rule is better settled in the law than, that the warrantor of the title, as between him and his warrantee, or those claiming under the latter, shall not be permitted to gainsay the propriety and the justice of the recovery of the land from the warrantee, under an adverse title alleged to be paramount to that of the warrantee, where the warrantor has been a party himself to the ejectment in which the recovery is had, or has had notice of the action being brought from the warrantee, in time to enable him to defend if he pleases. The warrantor is estopped by the recovery in such case from denying that it was under a better title the recovery was had, than that which he passed to his warrantee * * *' (Emphasis supplied.)

Chief Justice Gibson said in Ayres v. Findley, 1845, 1 Pa. 501, 502 'where a warrantor has notice to defend, the judgment will conclude him'.

In Hanley v. Ryan, 1926, 87 Pa.Super. 6, 11 this Court said: 'But in order that the judgment against the party secondarily liable may be used as the basis of suit against the party primarily liable, notice of the pendency...