L. B. Foster Co. v. Tri-W Const. Co.
| Decision Date | 28 November 1962 |
| Docket Number | TRI-W |
| Citation | 186 A.2d 18,409 Pa. 318 |
| Parties | , 3 A.L.R.3d 1142 The L. B. FOSTER COMPANY, Appellant, v.CONSTRUCTION COMPANY, Inc. |
| Court | Pennsylvania Supreme Court |
Julian Ruslander, Marvin S. Lieber, Ruslander, Ruslander & Lieber, Pittsburgh, for appellant.
Joseph S. Schuchert, Jr., Pittsburgh, for appellee.
Before BELL, C. J., and MUSMANNO, JONES, COHEN, O'BRIEN and KEIM, JJ.
This is an appeal from the Orders of the Court of Common Pleas of Allegheny County wherein judgments filed at D.S.B. 3605, 3606 and 3607 were stricken from the record without prejudicing any right which the plaintiff may have by way of an action in assumpsit or similar proceeding. The total of the three judgments was $21,817.63 each entered by virtue of warrants of attorney to confess judgment contained in written Equipment Rental Agreements and Steel Piling Rental Agreements dated in October, 1960 and the calendar year 1961.
The equipment and steel piling specified in the agreements were delivered to, accepted and used by the appellee without incident until 1961 at which time appellee defaulted in the payment of rental under the agreements in controversy.
The petition to strike each judgment avers two reasons: (1) lack of authority by the parties executing the agreements to sign on behalf of the defendant; and (2) the warrants to confess judgment were contained on the reverse side of each of the agreements, and defendant did not realize it was authorizing a warrant to confess while the signatures were on the face of the agreements.
We will discuss the second above quoted reason, because it establishes sufficient cause for striking the judgments.
The judgments confessed at D.S.B. 3605 and D.S.B. 3607 are based on 'Equipment Rental Agreements' and contain the following language on the face of the agreement:
'* * * for and in consideration of the payments, covenants and agreements hereinafter set forth and subject to the TERMS AND CONDITIONS printed on the reverse side and made a part hereof, the Lessor hereby leases and rents to the Lessee for the Rental Period the following described Machinery * * *.' This language is followed with a description of the equipment rented.
The face side of the agreement following the description of the equipment also provides: * * *' The signatures of the parties followed this language.
The face of the Steel Piling Rental Agreement is basically the same as quoted above for Equipment Rental Agreement and it is to be noted that neither agreement on its face included a warrant of attorney.
On the reverse side of the Equipment Rental Agreement, paragraph seven of eleven paragraphs, under the heading of 'Repossession' there appears the following: '* * * and the Lessee upon every default in the payment of rental and upon any and every breach of covenants herein as well as by reason of any failure to make repairs when necessary, in addition to empowering Lessor to make said Equipment without legal process, hereby empowers any attorney of any court of record to appear for the Lessee and confess judgment against the Lessee for such amounts as may at any time be due as rental, * * *.'
The Steel Piling Agreement contains substantially the same wording except the warrant of attorney is placed under the heading 'Remedies' and is paragraph thirteen of seventeen paragraphs on the reverse side.
The face of the agreements does not indicate that a warrant of attorney is included and there is no space for a signature of Lessee on the reverse side of the agreements. It is to be further noted that the...
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