Hanover Const. Co. v. Fehr
| Decision Date | 26 March 1958 |
| Docket Number | 2528 |
| Citation | 139 A.2d 656,392 Pa. 199 |
| Parties | HANOVER CONSTRUCTION COMPANY, By Warren Holland, To the Use of Francis H. E. EDE and Raymond DeRaymond v. Clayton F. FEHR and Roy S. Hahn. |
| Court | Pennsylvania Supreme Court |
Argued January 8, 1958
Appeals, Nos. 40 and 51, Jan. T., 1958, from order of Court of Common Pleas of Northampton County, Nov. T., 1953, No 133, in case of Hanover Construction Company et al. v Clayton F. Fehr et al. Order reversed; and judgment entered for plaintiff.
Replevin with bond. Before FRACK, J.
Verdict entered for plaintiffs; defendants' motion for new trial granted and motion for judgment n.o.v. denied plaintiffs' exceptions overruled; opinion by PALMER, J. Plaintiffs and defendants, respectively, appealed.
The grant of a new trial is reversed, the refusal of a judgment n.o.v. is affirmed and a judgment is directed to be entered on the verdict in favor of plaintiff.
Francis H. S. Ede, with him Raymond DeRaymond, for plaintiffs.
Herbert Fishbone, for defendants.
Before JONES, C.J., BELL, CHIDSEY, MUSMANNO, JONES and COHEN, JJ.
These two appeals challenge the propriety of the ruling of the court below in a replevin action, after a jury verdict in plaintiff's favor, granting a new trial to defendants and refusing judgment n.o.v. in favor of defendants.
In August 1953 Warren Holland, doing business as Hanover Construction Company, orally agreed to purchase from Clayton Fehr and Roy Hahn a Galion roller and an Allis Chalmers grader for the sum of $5,100. On August 12, 1953 Holland (plaintiff) [1] and Fehr and Hahn (defendants) entered into a written bailment lease under the terms of which plaintiff was to pay defendants as rental for the grader and roller the sum of $5,100, $2,100 of which was to be paid upon execution of the lease and the balance of $3,000 to be paid in twelve monthly installments of $250 each. The lease did not set forth the date of each month when the monthly installments were to be paid by plaintiff. However, the lease did recite that a note was to be executed and delivered by the plaintiff to the defendants "upon the execution of [the] lease as evidence of and collateral security for the obligation to pay the rental ...". On the same date plaintiff executed and delivered to defendants both the lease and the note and paid $2,100, the down payment required under the terms of the lease. The note, signed by plaintiff, was payable to the order of the defendants in the amount of $3,000 and provided, inter alia, for payment by plaintiff of the $3,000 in twelve monthly installments $250of each, "the first payment on September 12, 1953 - interest in advance $180 and on the same date of each month thereafter until fully paid ...".
On the same day the defendants, in writing, assigned both the lease and note to the Second National Bank of Nazareth, Pa., at the same time endorsing the note. Defendants then received $3,000 from the bank. Plaintiff received possession of the grader and roller and paid the bank $180, one year's interest in advance on the note.
On September 28, 1953 plaintiff paid the first monthly installment of $250 to the bank. On October 19, 1953 the bank mailed the following notice to the plaintiff: . Plaintiff received this notice in the early evening of October 20, 1953. Copies of this notice were sent by the bank to both defendants. On October 20, 1953 - prior to receipt of the notice by the plaintiff - at the bank's direction - defendants seized and repossessed both the grader and roller. The next day - October 21, 1953 - defendants repurchased from the bank the lease and note which were then reassigned to defendants.
On November 7, 1953 plaintiff instituted this replevin action. After issue joined the action was tried before the late Judge FRACK and a jury in the Court of Common Pleas of Northamption County. At defendant's request, the jury was instructed to render, in addition to a general verdict, a special verdict on each of two issues: (a) whether the bank's notice of October 19, 1955 to plaintiff constituted a waiver of any default in payment of the monthly installment on October 12th, 1953 and (b) whether under the terms of the lease and note plaintiff was required to make monthly payments on the 12th day of each month. The jury returned three verdicts: (1) a general verdict for plaintiff and against defendants for $5,028.75; (2) a special verdict finding that the bank's notice to plaintiff did not constitute a waiver and (3) that the plaintiff was not required to make the monthly payment on the 12th day of each month. Defendants filed motions both for a new trial and for judgment n.o.v. Judge PALMER, for the court en banc granted defendants' motion for a new trial but did not pass upon their motion for judgment n.o.v. Plainti...
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