211 Pa. 165 | Pa. | 1905
Opinion by
The single question presented by this appeal is whether in an action for damages for an alleged unlawful sale of the plaintiff’s property under a writ of execution issued on a confessed judgment a nonsuit was properly entered on the ground that the subject-matter of the controversy had been adjudicated in a proceeding to set aside the execution.
The plaintiff in this action was indebted to the defendant in the sum of $36,000 and gave it his judgment note for this amount, payable one day after date. On this note there was an indorsement signed by the maker to the effect that the note was given as a collateral to secure the payment of notes then discounted by the bank and of any renewals thereof. Four months after the date of the note, judgment was entered thereon and a writ of execution issued. The defendant in the judgment, the plaintiff here, presented a petition to the court for a rule to show cause why the writ should not be set aside. The specific ground on which relief was asked was that judgment had been entered and a writ of execution issued in violation of a contemporaneous oral agreement not to enter judgment on the note unless it became necessary to secure the bank against other creditors who might bring suit. In the answer to the petition it was denied that any oral agreement had been made, and it was averred that over $33,000 of the indebtedness remained unpaid with interest on such of the discounted notes referred to in the indorsement as had since matured, and that judgment had been entered in accordance with the terms of the note for the purpose of collecting a bona fide indebtedness. The main controversy at the hearing of the rule was in relation to the oral agreement, but the matter of the plaintiff’s indebtedness on matured notes, while apparently treated as of minor importance, was fully gone into. His testimony was exceedingly vague, and that of the bank’s cashier was clear and distinct that eight notes were then due. The rule was discharged on the grounds (1) that parol evidence was not admissible to vary the terms of the written instrument; (2) that if admissible the preponderance of evidence was in favor of the writing. Leave was given the plaintiff in the judgment to proceed with the execution for such amount as remained unpaid.
The order of a court discharging a rule to set aside a writ
The second ground of objection to the entry of the nonsuit is that while the bank might enter judgment on the note in order to secure a lien it could not lawfully issue execution in advance of the maturity of the notes to secure the payment of which the judgment was given. It is unnecessary to consider to what extent the bank was restricted in the use of the judgment by the indorsement on the note, or whether if the defendant in the judgment withheld any ground of defense at the hearing of the rule he could afterwards make it available in another proceeding, notwithstanding the general rule that a judgment will be conclusive not only as to matters actually litigated and decided but as to every ground of recovery and defense that might have been presented and decided : Rauwolf v. Glass, 184 Pa. 237. The right to issue execution under the terms of the note and the indorsement was considered at the hearing of the rule. It was brought to the attention of the court by the recital of the indorsement in the petition. The defendant introduced testimony to show that nothing was due at the time the writ was issued. This was met by counter-testimony offered by the bank, and whether anything was then
Since all the grounds of recovery in the action for damages had been adjudicated against the plaintiff, the nonsuit was properly entered, and the judgment is now affirmed.