26 Pa. Super. 555 | Pa. Super. Ct. | 1904
Opinion by
In June, 1893, Belle Benford, a married woman, borrowed of the plaintiff society $250, and gave therefor her promissory note payable one year after date. She never denied the validity of the note; on the contrary, she subsequently admitted her indebtedness, and made two payments,, one in 1894 and the other in 1895. After her death, suit was brought on the note against her husband, the executor of her estate. This is an appeal from the judgment upon verdict in the plaintiff’s favor. The complaint is that the court erred in refusing the defendant’s request for binding instructions, and in not entering judgment in his favor upon the point of law reserved non obstante veredicto.
In Real Estate Investment Co. v. Roop, 132 Pa. 496, Chief Justice Paxson held that, subject to the restrictions specified
It is argued that as it was shown upon the cross-examination of the plaintiff’s witness that Mrs. Benford declared, when she borrowed the money, that it was for the purpose of sending a sick son to Florida, the presumption in favor of the validity of the obligation was rebutted. We cannot assent to this proposition, even though it be assumed from this declaration of the borrower that she both borrowed and used the money for the purpose stated. She had a right to contract for necessaries, amongst which, under some circumstances, would be included the healing of a sick child. Therefore, the fact assumed, instead of showing that the money was not borrowed for necessaries, tends to show that itwas. It may not be sufficient, standing alone, to compel that conclusion, but it is not inconsistent with it; and, as we have already demonstrated by the authorities, the burden of proving that the contract is one of the kinds prohibited by the act of 1887, rested on the defendant. It was not incumbent on the plaintiff to show that the money was devoted to a purpose for which a married woman could contract under the act of 1887, even as that act was construed in the Hoop case.
Judgment affirmed.