193 Pa. 217 | Pa. | 1899
Opinion by
At the former trial a note was produced by the defendant, but plaintiff declined to accept it as the note sued on, and nothing further was done in the way of establishing that fact. We were therefore obliged to reverse the judgment, 187 Pa. 243. On the second trial the defendant not only produced the note again, but had it clearly identified on the cross-examination of the subscribing witness. The court therefore had before it the case of a narr. on a note assumed to be lost and evidence given of its contents, followed by the production of the note and its identification by plaintiff’s own witness. The evidence previously received on the theory of loss should then have been struck out on defendant’s motion, and plaintiff declining to offer the note, there was nothing before the court on which she could recover. The defendant himself, however, put the note in evidence, accompanied by testimony that it was in his possession at the time of his father’s death and had been ever since. There was no evidence either of payment or nonpayment of the note, the plaintiff offering none and the defendant being rendered incompetent to testify by the death of the payee. We have the question, therefore, on the legal presumption alone, whether the payee can recover on a judgment note which is in the hands of the maker, with no explanation how it got there after delivery.
Appellant argues that the circumstances are not sufficient to raise a presumption of payment, and cites a number of cases, beginning with Eckert v. Cameron, 43 Pa. 120. All of the
The evidence as to defendant’s presence in his father’s house, and also that offered as to his threats in his father’s lifetime “ to get even with him,” etc., amounted to no more than a basis for suspicion in an unfriendly mind that defendant had wrongfully taken the note out of his father’s room after death. The learned judge rightly held that it fell short of the proof necessary to permit the jury to find such wrongful taking as a fact.
Judgment affirmed.