| Pa. | Oct 9, 1871
The opinion of the court was delivered, October 9th 1871, by
In an action upon a bond or note under seal, want of consideration is no defence: Sherk v. Endress, 3 W. & S. 255; Yard v. Patton, 1 Harris 278. The late Chief Justice Lewis very clearly draws the distinction between want and failure of consideration in Candor & Henderson’s Appeal, 3 Casey 119. If fraud or imposition on the obligor or maker is set up as a defence, then not merely whether there was any consideration, but its adequacy, may be very material as an element in that question. If Jacob Burk-holder in the exercise of a capable will — freely and without fraud or duress — sealed and delivered to Jacob B. Plank, the instrument of writing sued upon, it was a gift of the money mentioned in it, and may be enforced against him or his estate after his death.
It appears to have been supposed, that because the note was expressed to be for services, that proof that there were no services rendered by the payee which had not been fully paid and settled, would avoid it. “ If,” said the learned judge in answer to the second point of the defendants, “no services were rendered when the note was given but what had been paid for at that time, then the plaintiff cannot recover.” This was an instruction which'was asked by the defendants, and they have no right to complain of it. We think it was an error, which ran through the whole case, which was tried in all respeGts, so far as this question is concerned, as if it had been on a parol promise. The fact, if the fact was, that no services had been rendered which had not been fully paid for by Burkholder, had a very important bearing upon the questions whether Burkholder had executed the note, and whether it was with a correct knowledge of its contents. If so, he had a right to give it for services however insignificant — even the common office of humanity by the most entiré stranger — monstrare viarn erranti. To show to the jury, in corroboration of the note, that he had no intention to make a gift — that his relations with and expressed opinions in regard to Plank, precluded any such idea — would lead to the inference of fraud if in point of fact there were no services
The plaintiff had given evidence of the services rendered, not as a claim in addition to and independent of the note, but, in case it should not be sustained, to lay ground for a recovery under the common counts of the declaration. He also showed declarations of kind and grateful feelings of Burkholder towards Plank and his wife. The defendants proved that the entire body of the note was in Plank’s handwriting; that Burkholder was very old; had in a great measure lost his eyesight, so as not to be able to read writing; that there was a contract or contracts between the parties by which Plank undertook to furnish boarding, washing and mending for Burkholder, at $3.25 for each and every week; and that there had been a settlement and payment of all that was due on this account. All this was relevant so far as the note was concerned, as tending to sustain the defence of fraud, and only relevant in that aspect. Whether Burkholder intended to give Plank $3500 as a mere gratuity or present, as a grateful return for kind offices performed under no contract expressed or implied to be paid for them, or, besides providing a fair and reasonable compensation, he meant to add a further sum as a present — this certainly was one of the points which fairly arose in the case. The defendants had a right to introduce any competent testimony which bore upon that point. We think the evidence offered by them, the rejection of which is complained of in the first and second assignments of error, did bear upon that point, and ought to have been received. Had the question been under the common counts alone, the ruling of the learned judge would have been correct; for when a case is made out by the admissions of the defendant, it is not competent for him to show other declarations at different times in contradiction of them. But, regarding it as a question of fraud in the plaintiff in obtaining Burkholder’s signature to the note in suit, everything which threw light upon the relation between the parties ought to have been admitted and gone to the jury.
Nor can it be said that this rejection did the defendants no injury, although the learned judge instructed the jury in the end that if there was no consideration for the note — no services rendered except those which had been settled and paid for — the plaintiff could not recover. The question of whether Burk-holder meant to give $3500 to Plank as a present or gratuity, was not submitted to the jury. Yet the refusal of this offer threw the defendants off their track. The learned judge instructed the jury in answer to a point presented by them — that if Burkholder estimated Plank’s services at $3500, and gave his note to Plank for that sum, which was his, Burkholder’s, estimate of the value of
It is unnecessary to examine the remaining assignments. We discover no other error in the rulings and instructions of the learned judge than that which has been noticed. It may be considered as well settled in this state by Fulton v. Hood, 10 Casey 365, and Travis v. Brown, 7 Wright 9, that after direct evidence has been given on the subject of handwriting, the evidence of experts is admissible in corroboration.
Judgment reversed, and venire facias de novo awarded.