248 Pa. 252 | Pa. | 1915
Opinion by
This is an action of assumpsit on a note under seal, dated October 21, 1907, payable one year after date, signed by' John A. Brown and payable to Philip Brown, his father. The latter died in April, 1909, and his son died about six months thereafter. The action was brought by the executors of Philip Brown, deceased, against the executrix of John A. Brown, deceased. The pleas, were non est factum and payment. The trial resulted in a verdict and judgment for the plaintiffs, and the defendant has taken this appeal.
On the trial of the cause, witnesses were called by the plaintiffs who testified that the maker’s signature to the note in suit was genuine. The defendant’s counsel offered to show by the cross-examination of these witnesses that the note bore evidence of an erasure which was excluded by the court. The plaintiffs introduced testimony in chief to show that the note was found by them among the papers of their testator after his death. The note was then offered in evidence and was objected to for the reason that it bears visible evidence of a material alteration in that certain words, now undecipherable, have been erased from the body of the note since its signature. The objection was overruled' and the note \yas admitted in evidence. The plaintiffs rested.
The learned court below left to the jury to determine the disputed facts whether Mrs. Marmaduke had the note in her possession as she testified, and whether or not the note had been altered in a material part. The second, third and sixth assignments relate to the refusal of the court to permit the defendant’s counsel to cross-examine the witnesses of the plaintiffs, called to prove the maker’s signature, as to whether there was any apparent. erasure or alteration of the note, and to the admission of the note in evidence. The testimony was properly excluded. The witnesses were called and interrogated simply as to the genuineness of the signature of the maker, and the defendant could not establish by cross-examination of these witnesses her defense of a
When Mrs. Hermine Pauline Brown, one of the plaintiffs and the widow of Philip Brown, deceased, was on the stand, the plaintiffs offered to show by her that the note in suit was among the papers of Philip Brown and in his possession at his house at the time of his death. The defendant objected to the offer on the ground that the witness’s interest was adverse to the estate of the defendant’s testator, and that the testimony referred to matters antedating the death of John A. Brown. The court overruled the objection and permitted the witness to testify. This was error. It will be recalled that Philip Brown died about six months prior to the death of his son, and that the matters offered to be proved occurred during the lifetime of the latter. They were material to the issue on the plea of non assumpsit. The defendant, as we have seen, claims in support of her contention that the note was paid and delivered to her husband, that it was in his possession prior to and at the time of his death. The testimony of Mrs. Brown tended to disprove payment and delivery of the note to defendant’s testator by showing that the note was in her husband’s possession several months prior to the death of defendant’s testator, the maker. Mrs. Hermine Pauline Brown is a legatee under her husband’s will and hence
The fifth assignment alleges the court erred in permitting Lewis R. Brown, a son of the plaintiffs’ testator, to testify that the note in suit had not been paid. The offer was to show by the witness that no part of the note had been paid to the executors of Philip Brown, deceased, and covered the period prior as well as subsequent to the death of John A. Brown. The defendant’s objection was overruled and the testimony was admitted. The witness is a legatee under his father’s will and his interest is adverse to the estate of John A. Brown, the defendant’s testator. He was, therefore, incompetent to testily that John A. Brown, during his lifetime, had not paid the note to Philip Brown’s executors, and the evidence should have been excluded. The testimony of this Avitness and of Mrs. Hermine Pauline Brown was material to the issue raised by the pleadings, and both witnesses being incompetent, the evidence should have been excluded. The other assignments are immaterial and need not be considered.
The fourth and fifth assignments of error are sustained, and the judgment is reversed with a venire facias de novo.