222 Pa. 446 | Pa. | 1909
Opinion by
This was an issue awarded to determine the genuineness of the signature to a judgment note. The note purported to have been made by W. H. Foster, W. B. Croushore, E. L. Woolsey, and J. W. Allshouse, to the order of W. H. Foster, and
If forgery was committed in this connection it must have been in the lifetime of Foster, the payee of the note. The interest of J. W. Allshouse as one of the makers of the note was clearly adverse to the claim of the payee, and that claim passed into the hands of the trust company in the lifetime of the payee, and is now held by it. The trial judge was entirely right in holding that the case falls literally within the terms of section 5, clause (e) of the Act of May 23, 1887, P. L. 158, which is as follows: “Nor where any party to a thing or contract in action is dead .... and his right thereto or therein has passed either by his own act or by the act of the law to a party on the record who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased .... party be a competent witness to any matter occurring before the death of said party,” etc.
It matters not that Foster, in addition to being the payee, was also one of the makers of the note; this did not in any way change the character of the interest of Allshouse, or render it less adverse to that of Foster, the deceased. The defendant was permitted to testify as to signatures made by him after the death of Foster. But the offers of testimony which were rejected, were to show that defendant did not sign the note; that he did not authorize it to be signed for him; and that cer
We do not find in the terms of the offers anything to support the suggestion of counsel for appellant that the testimony of defendant would tend to prove as an existing fact at the time of the trial, that the alleged signature was not that of defendant; there was no offer to show any change in the signature, or in the conditions in that respect which existed before the death of Foster, the other party to the contract.
The assignments of error are overruled, and the judgment is affirmed.