Rosenblum & Co. v. Rosenblum

• Decision Date: 27 November 1933
• Docket Number: 147
• Citation: 313 Pa. 49,169 A. 79
• Parties: Rosenblum & Co. v. Rosenblum, Appellant
• Court: Pennsylvania Supreme Court

169 A. 79

313 Pa. 49

Rosenblum & Co. v. Rosenblum, Appellant

No. 147

Supreme Court of Pennsylvania

November 27, 1933

Argued: September 26, 1933

Appeal, No. 147, March T., 1933, by defendant, from judgment of C.P. Mercer Co., April T., 1930, A.D., No. 482, April T., 1931, E.D., No. 55, in case of Nathan Rosenblum & Co. v. A. M. Rosenblum. Order refusing to open judgment affirmed.

Petition and rule to open judgment. Before McLAUGHRY, P.J.

The opinion of the Supreme Court states the facts.

Rule discharged. Defendant appealed.

Error assigned, inter alia, was discharge of rule, quoting record.

The order of the court below, refusing to open the judgment, is affirmed at appellant's cost.

Sidney E. Rosenblum, with him Louis J. Wiesen, for appellant.

C. E. Brockway, of Whitla & McKay, with him Nathan Routman, for appellee.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

PER CURIAM

:

Defendant appeals from an order of the court below refusing to set aside an execution and to open a judgment entered by confession against him upon a nonnegotiable promissory note. Appellant's petition averred as matters of defense an alleged oral agreement postponing the maturity of the instrument, i.e., providing that the note was to be paid out of the proceeds of the sale of the property levied upon, and further it alleged title to this property was held by a partnership and was consequently not susceptible of levy and sale on an ordinary fi. fa.

All questions raised by appellant were correctly disposed of by the court below and need not be discussed at length here. Not only was there no sufficient evidence of the existence of an oral agreement modifying the terms of the written instrument, but there was no averment or proof that this understanding was omitted by fraud, accident or mistake: Speier v. Michelson, 303 Pa. 66; Russell v. Sickles, 306 Pa. 586. In addition, there was a total lack of convincing testimony that the property in question is owned by a partnership and the lower court properly rejected this contention.