Metropolitan Life Insurance Co. v. Associated Auctioneers, Inc.

• Decision Date: 13 March 1935
• Docket Number: 559-1934
• Citation: 117 Pa.Super. 242,177 A. 483
• Parties: Metropolitan Life Insurance Co. v. Associated Auctioneers, Inc., Appellant
• Court: Pennsylvania Superior Court

177 A. 483

117 Pa.Super. 242

Metropolitan Life Insurance Co. v. Associated Auctioneers, Inc., Appellant

No. 559-1934

Superior Court of Pennsylvania

March 13, 1935

Argued December 17, 1934

Appeal by defendant from order of C. P., No. 2, Philadelphia County June T., 1934, No. 4253, in the case of Metropolitan Life Insurance Company v. Associated Auctioneers, Inc.

Rule to strike off judgment entered by confession.

The facts are stated in the opinion of the Superior Court.

Rule discharged, Lewis, J. Defendant appealed.

Error assigned was discharge of rule.

Affirmed.

David S. Malis, for appellant.

Willis H. Satterthwaite, with him Arthur G. Dickson and Frank Ewing for appellee.

Before Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

PARKER, J.

Appellant complains of the refusal of the court below to strike off a judgment which was entered by appellee in an amicable action which it asserts it was authorized so to enter by a power contained in a tenant lease executed by appellant as lessee. Appellant insists that since the power to enter judgment against him was executed by the lessor as agent, it was not available by the terms of the lease to the owner of the premises, and that, even if it were available, the judgment should have been entered in the name of the agent to the use of the owner. It is, therefore, necessary to examine the record, including the lease, for the purpose of ascertaining the right of the plaintiff to have the judgment confessed.

This proceeding is an amicable action and confession of judgment for a sum of money alleged to be due the owner of the premises for which a lease was given. A copy of the lease containing a power of attorney to confess judgment was attached, and it was averred under oath that there was due the plaintiff by way of rent a sum of money which the lessee had neglected and refused to pay, and that although the lease was made in the name of East Penn Realty Company, agent, the real owner of the premises, during the term of the lease and up to the time the judgment was entered, was the plaintiff, Metropolitan Life Insurance Company.

The lease was between East Penn Realty Company, agent, called the lessor of one part, and Associated Auctioneers, Inc., of Philadelphia, called lessee. It was specifically provided by Section 14 of the lease that if the rent should remain unpaid on any day when the same ought to have been paid, the prothonotary or any attorney of any court of record was empowered to sign for the lessee an agreement for entering in any competent court an amicable action or actions for the recovery of such arrears of rent or other charges and expenses and to confess judgment against the lessee for all arrears of rent or other charges. This provision was then added: "Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of said rent and/or other charges reserved as rent shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term and/or during any extension or renewal of this lease." It was also agreed as follows: "The word 'Lessor' shall include the Owner and the Lessor, be he, she, it or they a person, firm or corporation, as well as his, her, its or their heirs, administrators, executors, successors and assigns, each of whom shall have the same rights, remedies, powers and privileges as he, she, it or they would have had, had he, she, it or they originally signed this lease as Lessor, including the right to proceed in his, her, its or their name to enter judgment by confession or otherwise." (Italics supplied.)

The real owner of the premises was not named in the lease and, so far as the record discloses, was not known to the lessee. However, when the judgment was confessed, as we have indicated, the facts with relation to ownership were averred under oath and thereby brought on the record. Authority for the owner to confess judgment for the amount...