Roman Automobile Company, Incorporated, incorporated under the laws of the State of Delaware, vs. Calvin Miller

Delaware Superior Court1915-11-04

5 Boyce 58628 Del. 586

Summary · law.co

Holding. The court vacated and struck the judgment from the record because the power of attorney did not authorize entry of the judgment that was entered, and the amount of the judgment was not ascertainable from the face of the lease instrument as required by statute.

Roman Automobile Company leased a vehicle to Calvin Miller under a nine-month lease agreement executed in June 1915. The lease instrument contained a power of attorney authorizing confession of judgment against Miller for any unpaid rent in the event of default, along with a five percent attorney's commission. When Miller apparently defaulted, judgment was entered pursuant to this power of attorney. Miller sought to strike the judgment and vacate it from the court records.

The central question was whether the power of attorney authorized entry of the specific judgment that was actually entered, and whether the judgment amount could be determined from the face of the lease document itself. The lease did not state a fixed penalty amount, and the power of attorney only authorized confession for 'rent due and unpaid'—an indefinite sum rather than a specific dollar figure. Under the applicable statute, confession of judgment without a stated penalty could only proceed if the amount could be ascertained directly from the instrument's language.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a power of attorney to confess judgment for 'rent due and unpaid' authorizes entry of a specific judgment amount
Whether judgment amount must be ascertainable from the face of an instrument lacking a stated penalty
Validity of confession of judgment clauses in lease agreements

Procedural posture

Roman Automobile Company sought application to strike from the court records and vacate a judgment that had been entered against Calvin Miller pursuant to a power of attorney contained in a vehicle lease agreement.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Pennewill, C. J.,

delivering the opinion of the court:

This is an application to strike from the records of the court, and vacate, a certain judgment entered in pursuance of a power of attorney contained in the following instrument of writing, viz.:

“This agreement, made the fourteenth day of June, 1915, between the Roman Automobile Company, Inc. (hereinafter called the company and the lessor) and Calvin Miller (hereinafter called the lessee), witnesseth, that the company, for a consideration hereinafter mentioned, doth hereby lease and demise unto the lessee all that certain one Buick touring 7625 for and during the full term of nine (9) months, for which automobile the lessee hereby agrees to pay, for the use of same, the sum of three hundred and twenty-five dollars in the following manner: One hundred and forty (140) dollars in cash, the receipt of which is hereby acknowledged by the lessor, and the balance one hundred and eighty-five dollars in (9) monthly payments of twenty dollars each with interest 6%; first payment due July fifteenth and every month thereafter for eight months till paid in full; last payment twenty-five dollars. * * *

.“It shall be optional with the company in case said lessee fails to comply with any of the covenants aforesaid, to proceed as above set forth, or to procure judgment to be entered upon this lease for the whole amount of rent unpaid, and for that purpose said lessee hereby authorizes the prothonotary or any attorney of any court of record to appear for and confess judgment against him-in favor of the company for the whole amount of rent unpaid and costs, whether the same shall have become due and payable under the condition of this lease or not, and the said lessee hereby waives stay of execution, exemption laws, rights of inquisition on real estate, errors and appeals, and further authorizes the prothonotary to tax a commission of five per cent, as attorney’s commission in case execution issues thereon. * * * ”

The said agreement was executed by the parties under seal.

Section 5, Chapter 37 (page 290) Code of 1893, provides that:

“It shall be the duty of the prothonotary, on application by the obligee, or assignee, of a bond containing a warrant for an attorney at law or other person to confess judgment to enter judgment against the person who executed the same, for the amount which, from the face of the bond, may appear to be due, without the agency of an attorney, ot declaration filed, and with such stay of execution as may be therein mentioned; particularly entering on his docket, the real debt and time from which interest is to be calculated.”

Could the amount for which judgment was entered be ascertained from the face of the instrument as required by said section 5 ?

The only authority for the confession of judgment by virtue of a warrant of attorney, where there is no penalty stated in the bond, is contained in Section 5, Chapter 37, quoted above.

There is no penalty contained in the instrument upon which the judgment in question was entered.

The power of attorney contained in the instrument under consideration does not authorize the confession of judgment for any specific sum, not even for the sum of one hundred and eighty-five dollars with interest from June 14, 1915, which is stated to be the balance due, after deducting the cash payment. The power of attorney authorized the confession of judgment for the amount of rent due and unpaid, and not for any particular amount.

The court are of the opinion that the judgment in question should be vacated and stricken from the record, because:

1. The power of attorney contained in said instrument did not authorize the entry of the judgment that was entered.

2. The amount of the judgment was not ascertainable from the face of the instrument upon which the judgment was entered.