Medary v. Cathers

Opinion by Mr. Justice Fell, This case is of interest only to the parties to it. To the pro [91] fessional mind it involves no question that was not supposed to have been finally set at rest. The defendant was sued on a contract of suretyship, and at the trial took advantage of every ground of defence that was open for her principal on the merits, and of every technical objection that could be interposed by a surety. In this she was given the fullest opportunity, and she succeeded only in showing what has been so well established by experience, that the position of a surety is not a desirable one when the day of settlement comes. To sustain the first assignment of error we should be required to hold that it is incompetent for a court to make a rule allowing a written instrument on which suit is brought to be admitted in evidence without proof of execution, when the execution has not been denied, or notice given that such proof would be required, and thus overrule Reese v. Reese, 90 Pa. 89, and McGovern v. Hoesbach, 58 Pa. 176. The sustaining of the second assignment would overrule the decisions in Scranton City v. Barnes, 147 Pa. 461, and Borough of Easton v. Neff, 102 Pa. 474, and the line of cases to which these belong, and establish a new rule that an exception can be taken to the refusal of a court to enter a compulsory nonsuit. The third assignment is to the refusal to allow the defendant to testify to a statement made by her when the lease was signed. This testimony was intended to vary the written instrument. No ground was laid for its introduction, no representation had been made by any one to induce her to sign, and the purpose of the offer was to introduce a statement made by the defendant to one not the agent of the plaintiff, and never communicated to her. There would be little left of either principle or decision upon the subjects involved if this specification of error were sustained. The remaining assignments are equally without merit. There was no implied obligation on the owner to make ordinary repairs, and the fact that she occupied part of the premises for a portion of the year with the consent of the tenant, no change having been made in the contract, did not release the surety. The points were properly answered, and the jury carefully and accurately instructed in a charge to which no fair objection can be made by the defendant. The judgment is affirmed.