267 Pa. 468 | Pa. | 1920
Opinion by
This appeal is by plaintiff from an order opening a confessed judgment. In 1896 the Kane Flint Bottling Company (herein called “the company”) was a Pennsylvania manufacturing corporation, located at Kane, in which Father George Winkler, rector of the Catholic Church at that place, was interested as a stockholder. The defendants, M. J. and John Fitzgerald, were also located at Kane and engaged in the oil business as Fitz
While it appears, at the inception, Winkler sought to avoid an open connection with the company, as stockholder or creditor, yet that reason had ceased before the notes in suit were given, for at that time he was an open stockholder, and so shown on the company’s books, and has remained such to' this day, and in recent years he has been one of its officers. So the alleged reason for defendants giving these notes to Winkler did not exist when they were given. Furthermore, defendants never treated the notes they took from the company as belonging to Winkler. They renewed them from time to time as they saw fit, without consulting him and, in fact, never exhibited or offered them or any of them to him. They made loans to the company of their separate funds and mingled the notes taken therefor with those defendant claims represented the Winkler loans, so that when defendant was asked, “Can you pick out the specific notes that you took for the money advanced to you that you got from Father Winkler, advanced by you to the Kane Flint Bottling Co.,” he answered, “I can’t, for I let them all run together”; and later said, “We have any amount of them.” But the notes from the company to the defendant, produced by them at the hearing, correspond neither in dates, numbers nor amounts, with those they had given Winkler.
In 1918 the property of the corporation was sold for $9,350, net, and at a corporate meeting, attended by defendant as a director and president, a resolution was offered by Winkler to authorize the treasurer to turn the fund over to Fitzgerald Brothers, as the only creditor
There is a further reason why the judgment should not have been opened — defendant is an interested witness and his sole uncorroborated testimony is not sufficient to overcome his written promise to pay: Faux v. Fitter, 232 Pa. 33; Fuller v. Law, 207 Pa. 101. In the language of the present Chief Justice in McIvor v. Hynes, 248 Pa. 544, 550: “His [defendant’s] mere unsupported allegation that he did not get the money from the appellant was unavailing in the face of his writings, and the jury should have been so instructed.” In Juniata Building Association v. Hetzel, 103 Pa. 508, it is stated that, “When an instrument of writing is sought to he impeached by an equitable defense, the uncorroborated testimony of the defendant is insufficient to carry the case to the jury.”
The notes in suit were transferred to the use-plaintiff after maturity and she stands in the same position as Winkler would if no transfer had been made.
The case turns upon legal questions and deductions from facts and, therefore, comes before us for review upon the merits rather than to see if the chancellor has properly exercised his discretion: State Camp of Pa. Patriotic Order Sons of America v. Kelley et al., 267 Pa. 49, and cases there cited. Should the case go to trial on the same evidence it would be the duty of the court to direct a verdict for plaintiff, hence, the judgment should not he disturbed.
The order opening the judgment is reversed and the rule to show cause why it should not be opened is discharged at the costs of defendants.