Bixler v. Heilman
44 Pa. Super. 603
Pa. Super. Ct.
1910
Check Treatment

Opinion by

Rice, P. J.,

What quantity of evidence is required, to overcome a responsive answer has been variously stated. In Eaton’s App., 66 Pa. 483, a leading case, it is said to be “the tes*616timony of two witnesses or of one witness corroborated by circumstances elsewhere in evidence.” Other cases, in which the rule is stated in substantially the same way, are Cresson’s App., 91 Pa. 168; Gleghorne v. Gleghorne, 118 Pa. 383; McGary v. McDermott, 207 Pa. 620. In other cases the requirement is said to be “the evidence of two witnesses or of one witness and strong corroborating circumstances”: Eberly v. Groff, 21 Pa. 251; Pusey v. Wright, 31 Pa. 387; Delaney v. Thompson, 187 Pa. 343. In other cases the expression is, “contradicted by two witnesses or one witness and corroborating circumstances equivalent to a second witness”: Sylvius v. Kosek, 117 Pa. 67; Mason v. Smith, 200 Pa. 270; Real Estate & Mtg. Co. v. Cook, 223 Pa. 158. While in still others it is said that the answer is conclusive in defendant’s favor “unless it is overcome by the satisfactory testimony of two opposing witnesses, or of one witness corroborated by other circumstances and facts which give it greater weight than the answer, or which are equivalent in weight to a second witness”: Burke’s App., 99 Pa. 350; Galbraith v. Galbraith, 190 Pa. 225; Bussier v. Weekey, 11 Pa. Superior Ct. 463-474; Goggins v. Risley, 13 Pa. Superior Ct. 316; Story’s Eq. Jurisp., sec. 1528. In McCullough v. Barr, 145 Pa. 459, after stating that relief in equity is only given where the right to it is clearly made out, Justice Mitchell used this language: “Hence, if the facts out of which a right grows are denied by respondent under oath, there must be more than the complainant’s oath to overcome it. This is the substance of the rule; and it is not to be so fettered by technical limitations as to impair its real meaning, especially since parties have been made competent witnesses, and their testimony thus put on an equality, not only as to each other, but as to other evidence.” There is much force in the contention that the rule cannot be invoked by a defendant who is proved to the satisfaction of the judge sitting as a chancellor to be a person of bad reputation for veracity and not to be believed. This contention *617seems to have been sustained in Miller v. Tollison, Harp. Eq. (S. C.) 145, cited in 3 Greenl. Ev. (16th ed.), sec. 289, but in several other jurisdictions it has been held to be incompetent to discredit the answer by impeaching the general character of the defendant for truth and veracity. See cases cited in 6 Am. & Eng. Dec. in Eq. 80, and particularly Brown v. Bulkley, 14 N. J. Eq. 294. There seems to be no reported case in Pennsylvania directly on the point, but it has been held that the force of the answer is weakened, if not wholly destroyed, by the contradictory evidence of the defendant given on the witness stand. “When a party is permitted to testify, and does testify in conflict with his answer, it will not do to hold that his testimony shall be disregarded and his answer stand wholly unimpeached”: Mercur, J., in Spencer & Newbold’s App., 80 Pa. 317. So in Columbia Avenue Savings Fund, etc., Co. v. Lewis, 190 Pa. 558, it was said: “His (the defendant’s) testimony was in a measure contradictory of his answer; not sufficiently so, perhaps, to overcome its effect as evidence, but enough to weaken its force.” Whilst we are not prepared to go to the full extent of the ruling in Miller v. Tollison, Harp. Eq. (S. C.) 145, we are of opinion that where the defendant goes upon the witness stand and his credibility is successfully impeached by evidence of his general reputation for truth and veracity, the force of his answer is weakened and the rule in equity will be satisfied by the positive and satisfactory testimony of one witness to the facts essential to a decree of the relief prayed for, corroborated by other facts and circumstances which give it greater weight than the answer, even though the circumstantial evidence, standing alone, would not be sufficient to make out every essential to a decree for the plaintiff. Thus viewing the case, it is not necessary to decide that the testimony of the two plaintiffs was tantamount to more than the testimony of a single witness, or that each corroborated the other, although, speaking for myself, I think both propositions could be decided contrary to the appellant’s con*618tention. Treating their testimony as that of a single witness, and assuming that, notwithstanding the suc¿essful impeachment of the defendant’s character for truth and veracity, it was still incumbent on the plaintiffs to prove strong, corroborating facts and circumstances in addition to their testimony, we are of opinion that they made out a case which entitled them to the relief prayed for. These corroborating facts and circumstances are fully set forth in the findings and opinion of the learned judge below, and need not be restated by us. We think also that the learned judge has satisfactorily shown that the principle of Greenfield’s Est., 14 Pa. 489, and kindred cases, cannot preclude the plaintiffs from demanding that the deed be cancelled, in view of the evidence going to show that the defendant, by his declarations and conduct, induced them to forego reading the entire deed before executing it.

The decree is affirmed at the costs of the appellant.