McCann v. Hedin

• Decision Date: 25 May 1954
• Citation: 377 Pa. 508,105 A.2d 594
• Parties: McCANN v. HEDIN et al.
• Court: Pennsylvania Supreme Court

Page 594

105 A.2d 594

377 Pa. 508

McCANN v.HEDIN et al.

Supreme Court of Pennsylvania.

May 25, 1954.

Rehearing Denied June 19, 1954.

Guy S. Claire, Souderton, for appellant.

Harry J. Liederbach, Achey & Power, Doylestown, for appellees.

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

HORACE STERN, Chief Justice.

Plaintiff loaned to defendants the sum of $5,500 and a judgment note in that amount was executed by them in his favor and placed by him on record.Subsequently defendants petitioned for a rule on plaintiff to show cause why the judgment should not be marked satisfied because, as they alleged, they had paid him five installments each of $1,100, being the full amount due on the note.In his answer to the petition plaintiff admitted the receipt of such payments but averred that they were made, not on the note, but on an open book account for merchandise (turkey feed) sold and delivered by him to defendants.He further averred, in New Matter, that he had furnished defendants with turkey feed on an open book account in the sum of $16,787.80 on the express understanding that the judgment should be and remain a lien upon defendants' real estate until not only the loan represented by the judgment but the full amount of the book account had been paid.Depositions were taken by the parties in support of the petition and answer respectively, and, since they revealed a factual controversy, the court made an order directing counsel for the parties to frame the issues to be submitted to a jury.In pursuance of that order counsel thereupon entered into a stipulation that the issue to be presented to the jury for determination should be whether the five payments had been made on account of the judgment note or on account of the open book account in which plaintiff was creditor and defendants were debtors.The court approved the issue as thus framed and the case proceeded to trial by a jury, the result of which was a verdict that the payments were made on account of the judgment note.

Plaintiff appeals from the court's refusal to grant a new trial, his complaint being that the court instructed the jury that there was only one issue to be decided by them, namely, whether the payments had been made on account of the judgment note or the book account; he contends that his averment in New Matter, namely, that it had been understood by the parties that the judgment should remain a lien until the full amount of the book...