Meyers & Joly v. Freiling

81 Pa. Super. 116, 1923 Pa. Super. LEXIS 27

• Court: Superior Court of Pennsylvania
• Decided: October 16, 1922
• Docket: Appeal, 138
• Status: Published

Opinion

Opinion by

Henderson, J.,

This case comes up on an appeal from the refusal of the court to strike off a judgment entered by the prothonotary on an instrument containing a warrant of attorney t’o confess judgment. The authority to enter judgment on such warrant is found in the Act of February 24, 1806, which makes it the duty of a prothonotary on the application of the holder of a bond or other instrument containing a warrant of attorney t’o confess judg ment, “to enter judgment against the person or persons, who executed the same for the amount, which, from the face of the instrument, may appear to be due.” To give effect to such an entering of judgment, the statute must be strictly followed for it does not give general authority as in the case of an att'orney-at-law to appear and confess judgment. The statute was evidently adopted to enable a creditor to obtain a judgment on an obligation for the payment of money without the expense of the intervention of an attorney. Obviously such judgment could only be entered for an amount appearing to be due by the terms of the obligation, and this is what the statute expressly declares. The judgment is to be entered for an amount which appears to be due on the face of the instrument. When this amount cannot be ascertained without a resort to evidence outside of the writing, the statute does not support the judgment. Where there is not a fixed and definite amount1 admitted to be due on the face of the instrument, the prothonotary has not authority to accept evidence on the subject and in the capacity of an arbitrator or referee ascertain facts not appearing in the instrument to which the warrant of attorney is attached. Justification for bringing a defendant into court and fixing his liability in the conclusive form of a judgment on a warrant of attorney must be found in the terms of the instrument containing the authority, and in the case of a prothonotary acting under the statute, is not to be extended beyond the definite power which the law confers. An inspection of the instrument supporting t'he judgment in this instance shows that it is not an obligation for the unconditional payment of a definite sum at any definite time. The claim is for a conditional payment arising on the sale of real estate and was contingent on the occurrence of the sale. The amount was contingent on the price to be obtained for the property with a proviso that it should never be less than $100, and if the property was withdrawn from sale by the defendant, a fee of $10 for serv ices was to be paid to the plaintiffs. The commission was to become payable to the plaintiffs “as soon as agreement is made to sell said place.” The warrant of attorney is not given for the confession of a definite sum, but “for any of the above sums, with costs of suit.” Evidently therefore no one could tell by an inspection of the instrument on the day when the judgment was entered what the rights of the plaintiffs and defendant were with respect to the contract. They could only be ascertained by an inquiry as to whether tbe conditions existed out of which a liability to pay would arise, and especially it could not be ascertained from inspection whether an agreement to sell bad been made. This difficulty was recognized and an attempt was made to supply tbe lack of facts contained in tbe instrument by tbe filing of an affidavit made by one of tbe plaintiffs in which be alleged that while tbe agreement was still in force tbe defendant “sold said business and equipment for a price or sum, which according to deponent’s information and belief was not less than tbe sum of $2,500, whereby there became due and owing to tbe plaintiffs as commission upon said sale under said agreement tbe sum of $250,” etc. It was from this affidavit and not “from tbe face of the instrument” the protbonotary ascertained tbe amount for which be entered judgment, and with respect to tbe affidavit it will be noticed that the price for which the bouse was sold is not definitely known; the best tbe deponent could do was to say that according to bis “information and belief” it was not less than $2,500. This would not have been evidence in an action between tbe parties to establish the price for which the property was sold, and if the affidavit could have been used by the protbonotary, was not1 a sufficient averment of fact to fix the amount of commission due under the agreement. The obligation is no more definite than that involved in Connay v. Halstead, 73 Pa. 354, which the court said was wholly insufficient to authorize the entering of a judgment by the protbonotary. The cases cited by the appel lees are not in point. In all of them there was a fixed amount admitted to be due. The obligation was not contingent on facts subsequently to be developed and variable according to such facts. The appellant was entitled to the relief prayed for.

The judgment is therefore reversed and the record remitted to the court below with direction to reinstate the rule to strike off the judgment and make the same absolute. Costs to be paid by the appellees.