Bunnell v. Kintner

Opinion by Porter, J., There may be a doubt as to the right of the plaintiff to question the manner of the exercise of the discretion of the court below in opening the judgment by confession, and in the same appeal assign for error the rulings of the court at the jury trial, which resulted in a verdict and judgment in favor of the defendant. The appellee has not, however, challenged that right, and, as the case must go back for a new trial, the preliminary question may now be settled. After a full and careful consideration of the depositions, the contemporaneous correspondence and contracts of the parties, and the form and appearance of the rather unusual instrument upon which the judgment was entered, we are not convinced that the action of the court below, in opening the judgment, involved an abuse of discretion. The testimony of the defendant, and that of the expert witness called by him, taken in connection with the form of the instrument and the circumstances surrounding its execution, would certainly have warranted a finding that the instrument had been fraudulently changed from a simple receipt for money to a promise to pay authorizing a confession [610] of judgment. That the allegations of those depositions were directly contradicted by those of several other witnesses, is true, but that contradiction, taken in connection with the undisputed facts, the relations of the parties, and their contemporaneous writings, presented a proper case for the exercise of the discretion of the court below. The plaintiff, upon the trial, called the subscribing witness, and proved the execution of the instrument upon which the judgment had been entered. He then offered the alleged note in evidence. The defendant objected upon the ground that the paper bore on its face evidence of alteration. The objection was overruled and the paper admitted in evidence. This was an explicit ruling that the paper, the defendant’s signature to which had been proved, did not bear upon its face evidence of an alteration in a material part thereof. Had such an alteration appeared upon the face of this written promise to pay, it would have been the duty of the court to require the holder to produce evidence explaining the alterations before the note could be received in evidence : Clark v. Eckstein, 22 Pa. 507; Citizens’ National Bank v. Williams, 174 Pa. 66; Sunday v. Dietrich, 16 Pa. Superior Ct. 640. The plaintiff thus having in evidence a written promise to pay, signed by the defendant, and the signature proved, rested his case. The original note was produced at the argument in this court, and we must expressly decline to pass upon the correctness of the ruling which admitted it in evidence, for that question does not arise under any of the assignments of error. The court having admitted the note in evidence, the plaintiff was justified in proceeding to try his case upon the theory that the ruling was correct. The defendant then submitted his evidence, which did not call in question the genuineness of his signature, but did tend to establish that, by the addition of certain words at the end of the instrument and another slight alteration, it had been changed from a receipt into a promise to pay. The assertion of the defendant was that he had sold a certain claim to the plaintiff, on September 22, 1900, and had on that day received two checks upon which he collected from the bank $1,000, which was a payment on account of the sale of said claim, and that the written instrument in question was given as a receipt for the money. He testified as to the contents of [611] the instrument at the time he signed it, and called a number of expert witnesses who testified, in effect, that the word “ push ” in the body of the instrument had been written over the word “ on,” and that the words “ paid in six months with interest; I confess judgment, condemnation, waive inquisition and exemption ” had been added after the other part of the paper was written, and in the same handwriting. He also produced oral and written evidence as to the negotiations of the parties with regard to the claim in question. This evidence certainly indicated, or was capable of the construction, that the parties negotiated with a view to the absolute sale of the claim. The appellant, upon the conclusion of the defendant’s testimony, proposed to prove in rebuttal, by an expert witness on the stand, that the entire note had been written at one time, that nothing had been added to it since it was signed, and that it had not been altered. The defendant objected, not upon the ground that the expert was not competent, but that the testimony was a part of plaintiff’s case in chief, that having called the subscribing witness to prove the execution of the note, he was precluded from offering testimony in rebuttal which would explain the note, or the alleged alterations, and upon that ground the court sustained the objection. The plaintiff having been sworn as a witness, it was proposed to prove by him his version of what had occurred at the negotiations relating to the alleged sale of the claim as to which the defendant had testified, that he never had agreed to purchase the claim, that he had only undertaken to prosecute it for the defendant, and that the money had been paid to the defendant as a loan and not as a payment upon any purchase of the claim, and that the witness had written the entire note which had not been altered in any respect since being signed by the defendant. The defendant made the same objection to this testimony, and it was by the court excluded upon the same grounds. The learned judge seems in this ruling to have relied upon a rule of the court below. The rule was stated by the court in the following words: “ And in all actions upon promissory notes or bills of exchange which may be declared on, it shall not be necessary to prove the handwriting of the drawer, acceptor or endorsers, but the same shall be taken to be admitted, unless the defendant shall at or before the time of filing plea, deny the [612] same to be the proper handwriting of said parties, by affidavit.” This rule manifestly refers to the proof of the signature of the drawer, acceptor or endorser. When the plaintiff proved the signature of the defendant, and the court admitted the written instrument in evidence, that rule ceased to have any application to this case. The plaintiff hád then made out a prima facie case: Harbaugh v. Butner, 148 Pa. 273. The case thus made out did not depend on the former judgment, but upon the written promise to pay which the court had held to be regular upon its face. The testimony which had been taken under the rule to open the judgment was not before the court and jury at the trial of the issue. The plaintiff was not bound to anticipate what evidence as to an alteration in the note, not apparent upon its face, the defendant might offer. Nor could he be held to foresee what evidence might be produced as to a failure of the consideration for which the note was given, nor what allegations of fraudulent dealing the defendant might make. The correctness of the ruling which admitted the note is not before us, and must be assumed to have been correct. The plaintiff was not obliged to go further in presenting his case .in chief. The evidence presented by the defendant tending to establish an alteration in the note, not apparent upon the face thereof, and of all the transactions between the parties, tending to throw light upon the alleged fraud was certainly admissible : Wheeler v. Ahlers, 189 Pa. 138. Such evidence was, however, new matter, which the plaintiff was not called upon to meet until it was produced, and when produced he should have been given an opportunity to answer it. The third, fourth, fifth and seventh specifications of error are sustained. The remaining specifications are without merit, and do not require discussion. The judgment is reversed and a venire facias de novo awarded.