McCarty v. Scanlon

Opinion by Mr. Cheek Justice Sterrett, When this case was here before (17G Pa. 262) the judgment in plaintiff’s .favor was reversed on the ground that the jury, in a special verdict, found that the note in suit was given “for the purpose of hindering and delaying creditors of said Scanlon, and that there was no evidence on the part of the plaintiff to show that said note was given without any consideration or for the purpose of hindering and delaying creditors.” Our Brother Mitchell, writing for the Court in that case, said: “ The result is that the plaintiff has a judgment on a ground that he expressly repudiated, and in the face of an explicit finding by the jury against his claim, while the defendant has a judgment against her, notwithstanding a finding of the main fact of the defense in her favor. ... It is clearly apparent that the transactions between the parties were not the ordinary dealings of borrower and lender, and it is equally manifest that the witnesses on neither side were telling the entire truth.” On the second trial, the record of which is now here for review, the defendant testified more fully as to declarations by the plaintiff to the effect that there was no money consideration for the note, that he did not intend to try to collect any money on it, and that he repeatedly promised to give it to her. Her testimony as to these declarations was corroborated by other witnesses. Other facts and circumstances, — not necessary to be detailed here, — gave further weight to her testimony. The ease was clearly one for the jury. There was no error in refusing to strike out the defendant’s testimony as to plaintiff’s declarations ; nor is there any ground for plaintiff’s contention that binding instructions should have been given in his favor. Such instructions would have been plain error. It necessarily follows that the portions of the charge embraced in the second and third specifications are not erroneous. The complaint is not that the trial judge presented plaintiff’s case inadequately or gave undue prominence to the defendant’s theory, but that the defense was permitted to go to the jury in any form. In commenting on the testimony as to plaintiff’s declarations, the [500] learned trial judge, after presenting defendant’s theory, was careful to state that there was “ a possible construction to be given to this testimony that would still be favorable to a recovery by the plaintiff,” namely, that the declarations might have been made, “ for the purpose of endeavoring to dispel the evident worry that Mrs. Scanlon was in.” That was going quite as far in presenting a view favorable to the plaintiff as the latter could reasonably expect. The plaintiff’s complaints (if any he has) ought to be against the jury, and not the court. In saying this, however, we do not mean to intimate that the jury reached an improper conclusion. On the contrary, we think it was correct. The objection to plaintiff’s second point is that it wholly ignores defendant’s theory of the case and the evidence in support of it. The defense did not allege payment or cancelation, but contended that the note had been given for some undisclosed purpose, and that the purpose, whatever it was, had been fulfilled. The trial judge was therefore right in embodying in his answer the remark that plaintiff could recover unless the defendant showed one of the defenses to the note presented in the point, or “ that the purpose for which it was given had been fulfilled.” Plaintiff’s last point was properly qualified. It is unnecessary to pursue the inquiry further. Our examination of the record has failed to disclose any error on the part of the court below that would justify a reversal of the judgment. Judgment affirmed.