Ulrich v. Getz

Opinion by Smith, J., This action was brought on a promissory note made by Levi G. Getz, for $350, to the order of Harriet Donaven. The maker having died, the action was duly continued against his administrators. The note was transferred by the payee to the plaintiff after maturity, and is, therefore, subject to any defense which might be made against the payee, growing out of or connected with the note or attaching to it while in the paj^ee’s hands : Long v. Rhawn, 75 Pa. 128. There is no denial that the money for which the note was given was received by the maker in settlement of a claim of the payee against a third person, which settlement had been effected largely through the maker’s assistance. There is no evidence or allegation that the defendant ever paid the note to the payee or to any person at her request. It is asserted in the appellant’s paper-book that the money was expended in the maintenance of the illegitimate child of the payee, but there is nothing in the evidence sufficient to warrant the inference that the maker was authorized, by Harriet Donaven to so apply it. The contention that the note was given in trust for this child and that the latter was entitled to the proceeds, has nothing in the evidence or the law to support it. The note is an ordinary promissory note and is entitled to the protection and subject to the limitations relative to this class of [293] paper, under the commercial law. There is no proof of fraud or mistake in the execution of the paper and none is alleged. In fact the entire transaction, including the execution and delivery of the note, seems to have been brought about through the voluntary assistance and management of the defendant. It is noticeable also that all suggestions to pay less than the amount of the note came from the defendant and were not assented to by the payee. A careful scrutiny of her letters and her testimony, disclosed a consistent desire to obtain the money from the defendant, without discommoding him or injuriously affecting her child Hagar. In a certain sense the defendant may have displayed a laudable desire to secure a part of the money due on the note for the child, Hagar, but it would be equally creditable to have paid it according to the express undertaking, and referred the question of the rights of the mother and daughter, if they differed on this point, to the proper tribunal, where it could have been judicially settled: Church v. Jones, 155 Pa. 122. It is no doubt true “ that where, at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made, by word of mouth, upon the faith of which the writing has been executed, parol evidence of .this is admissible, though it may vary and materially change the terms of the contract.” But it was not shown or offered to be shown here that any of those conditions existed, and the rule referred to has, therefore, no application. It was for the court to pass upon the letters and instruct the jury as to their pertinence and probative force. The execution of the note was admitted, and the main question raised by the assignment of errors is the sufficiency of the evidence touching the acknowledgment. of the debt and the promise to pay it, so as to take the claim out of the statute of limitations. The note was due October 4, 1877, and this action was brought May 9, 1894. The testimony relied upon to overcome the bar of the statute was contained in the depositions of Joseph B,. Snyder and Jacob S. Snyder, of Illinois, taken under a commission. From this testimony, it appears that while visiting at Lancaster county, Pennsylvania, the Snyders called on the maker 'January 4, 1883, at his home, and demanded payment of the note on behalf of the payee, telling him that they called at her request. In reply the defendant said: “ I suppose Harriet would like to have the money on that note and I wish [294] she had it; I wish it was settled up; I am tired of keeping it. You tell Harriet I am going to Iowa this summer, and I will call on her at her home in Benson, Illinois, and pay the money direct to her.” He further said “thathe was going West the following spring and he would stop off and pay her the money and take up the note.” These witnesses also said the conversation “ was entirely about this note in suit, the 1350 note, and had no reference to any other note.” It was also shown that no other note or transaction was referred to or existed between the inaker and the payee at that.or any other time. On the question of the measure of proof required to toll the statute, the learned trial judge instructed the jury that “ it is incumbent on the plaintiff to show, before there can be any recovery by him in this case, that it has been taken out of the statute of limitations by evidence that the defendant acknowledged the indebtedness and promised to pay it. Such acknowledgment must be clear and unequivocal; it must be certain and unqualified ; it must have specific reference to the note in suit.” This instruction was in no manner modified by the other parts of the charge, and, we think, presented the question as strongly in favor of the defendant as the rule governing the subject required. It would be useless to notice the assignment of errors in detail. Some of the specifications are in violation of our rules and others relate to immaterial and impertinent matters. We have briefly referred to the material questions presented by the record. The case seems to have been fairly tried and the instructions to the jury covered all matters which their duties required them to consider. No error calling for a reversal of the judgment appears. . The assignment of errors is overruled and the judgment is affirmed.