248 Pa. 544 | Pa. | 1915
Opinion by
Margaret Mclvor, the appellant, entered a judgment for $7,000 in the court below against Edward J. Hynes, the appellee, on a note containing a warrant of attorney authorizing the entry of it. The judgment was subsequently opened upon the petition of the defendant, and, in the issue to determine whether he was indebted to the plaintiff in any sum secured by his said note, a verdict was returned in his favor. On this appeal from the judgment on it appellant’s main complaint is of the court’s refusal to instruct the jury that she was entitled to recover $2,500 with interest, the amount she claimed to be due her on the defendant’s note.
The facts involved in this controversy are somewhat peculiar. On August 12, 1904, the appellant purchased a property situated on Race street, in the City of Philadelphia. Instead of taking the title in her own name, the conveyance was made to the appellee, and on August 31, 1905, he executed a declaration of trust, in which he
The appellee admits that he executed the judgment bond, and does not aver that any fraud was practiced upon him in procuring its execution, or that it was executed by accident or mistake. His explanation of how he happened to sign the note appears in the following from his testimony: “I was in the office one day and he (Mclvor) got me to sign this note. He put it before me, and I looked at it, and I said, ‘What does this mean?’ He says, ‘This is only a matter of form, Ed. You are holding this property in your name, in case anything should happen to you or you would die, I would be protected.’ Under those conditions I signed the note.” At this time the declaration of trust had not been recorded, and Mclvor was looking after his sister’s interests. Appellee’s statement of the circumstances under which he signed the bond, together with his denial of his retention of the $2,500, might have been sufficient to send the case to the jury, but, in view of papers subsequently signed and delivered by him, in which he unequivocally admitted his liability on his judgment note, the submission of that question to the jury was manifest error. Within a very short time from his execution and delivery of the note to the appellant he executed and gave her a paper of which the following is a copy: “This is to certify, that, Whereas, I, the undersigned, Edward J. Hynes, of the City of Philadelphia, do hold in trust for Margaret Mclvor, of said city, a certain property situate on the south side of Race street east of 20th street in the 10th ward of city aforesaid' as by my declaration of trust to said Margaret Mclvor, dated the 31st day of August, A. D. 1905, will more fully appear, and whereas said premises was subject to a mortgage of $6,000, and whereas I have requested from said Margaret Mclvor a loan of $2,500 and that in order to ac
. The second assignment of error is sustained, as is the first, and the judgment reversed, with direction that the record be remitted and judgment entered for the plaintiff non obstante veredicto.