Hartman v. Shaffer

The opinion of the court was delivered, by Sharswood, J. The eighth of the rules of this court, adopted at Pittsburg, September 6th 1852, 6 Harris 578, provides that “when the error assigned is to the admission or rejection of evidence, the specification must quote the full substance of the bill of exceptions, or copy the bill in immediate connection with the specification. Any assignment of error not according to this rule will be held the same as none.” This rule has been entirely disregarded in the assignment of errors in this case. There are ten errors assigned to the admission of testimony. There are, however, but two bills of exceptions, neither of which are assigned according to the rule. There was in the first instance an offer of testimony to be followed by other evidence, which was admitted and a bill of exceptions sealed. At the close of the evidence the judge gave a sweeping exception to all the evidence which had been produced by the defendant “ with the same effect as if a special bill of exception had been taken and allowed to each offer of testimony.” Without setting out either of these bills in his specifications of error as ground of complaint the defendant picks out from the whole mass of the testimony ten particulars which he declares to have been irrelevant and inadmissible. Such a mode of assigning errors is manifestly contrary both to the letter and spirit of the rule, and must accordingly be held “ the same as none.” The real question, however, on the merits of the cause is presented by the remaining assignments — whether there was any evidence given which ought to have been submitted to the jury as tending to make out the defence, that there was no consideration for the note in suit. In every case of a promissory note the prima facies is in this respect in favor of the payee. It imports a valuable consideration. It is also undoubtedly true that without some evidence to cast suspicion upon the transaction — the pecuniary circumstances of the respective parties and their relations to each other would be irrelevant and calculated to mislead the jury: Woods v. Gummert, 17 P. F. Smith 136. But where there is evidence tending to show unfairness, undue influence or fraud, the evidence may take a wide range: Reinhard v. Keenbartz, 6 Watts 93; Kauffman v. Swar, 5 Barr 230; Stevenson v. Stewart, 1 Jones 307. The plaintiff below did not commence his case in the usual way by proof of the signature of the maker of the note but called two witnesses — his son and daughter — to prove its execution. The maker was his father-in-law and a man ninety-one [316] years old. The testimony of the daughter was that her father and grandfather were together, and her father called her in from an adjoining room. They were making calculations — had before them two old notes — whose she does not say — “ they said they had given the old notes one of $1500 and one of $349.” “ She did not recollect to whom they said they had given the old notes.” The father told her to write the note for $4300, which she did and her grandfather signed it. The son Peter testified substantially to the same facts. This was in March 1863. The old man died in January 1864. These witnesses testified and without contradiction by Francis Hartman, who was also examined, that three weeks afterwards when the will of Christian Shaffer was read, he, Francis Hartman, was present and asked Hannah Shaffer, the executrix, whether there were any debts — she replied there were none, and he was silent. The account of the executrix was filed in the Register’s office October 3d 1867, and this suit was brought May 20th, 1869. The note was drawn payable two years after date and was not due therefore until March 27th, 1865. It is true there was no absolute estoppel or bar in all this, but these were circumstances tending strongly to shake the primá facie presumption in favor of the instrument, and therefore enough to allow a wide latitude to be given to the evidence to show from the circumstances and relations of the parties the improbability that any valuable consideration existed for the note. To this is to be added the fact that Christian Shaffer did not speak English; he could understand only a few words; he could not read or write English. The note is written in English but the signature is in German. The granddaughter read it to him in English because as she says it was written in English; but she did not explain it in German. There is here indeed no direct evidence of fraud or undue influence, but it is impossible to say that it was not the question in the cause. No one pretended that Christian Shaffer meant to give this amount of money to his son-in-law Francis Hartman. If the two notes present and upon which they were calculating when the note in suit was signed, were notes of Christian Shaffer held by Francis Hartman and formed the consideration which seems to be the theory of the plaintiff below — for no other consideration was attempted to be shown — they must have been running more than twenty years without payment of interest in order to make the amount of $4300. It can hardly be maintained that it was irrelevant to show that during this period Hartman was borrowing money and mortgaging his farm, and that on the other hand Christian Shaffer was in comfortable circumstances and in no need of borrowing money. His will showed that he had considerable ■real estate which he disposed of among his daughters. We cannot say then that the court below erred in submitting this case to the jury. There was undoubtedly rebutting evidence to all this produced [317] by the plaintiff. It is not our province to weigh this evidence. That was for the jury under the supervision of the court below on a motion for a new trial. Judgment affirmed.