176 A. 236 | Pa. | 1934
This appeal is from a refusal to open a judgment entered on a bond accompanying a mortgage. An application to open a judgment entered upon a warrant of attorney is an equitable proceeding, addressed to the sound discretion of the court and to be disposed of in accordance with equitable principles. The judge sits as chancellor. On appeal this court determines only whether the discretion has been abused.1 An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, *94 or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.
It is contended with much vigor that Mary Rosol, one of appellants, did not sign the bond and mortgage but that her mark which indicated her signature was forged. She is the only witness to this statement. Appellee produced the testimony of two witnesses, both of whom testified they saw her affix her mark. Without any challenge to the credibility of these witnesses, the court did not err in concluding that she had signed the papers.
To open a judgment there must be more than a mere conflict of evidence; it is not a case of oath against oath, but there should be such evidence as carries conviction as to truth, so that a chancellor in forming his deliberate judgment is impressed with the fact that the ends of justice would be met by opening the judgment and submitting the matter to a jury. On the record here presented, the conclusion of the court below was proper.
The mortgage and bond were executed in blank. Mary Rosol and her husband believed Korpanty, the attorney who procured the money from appellee, was the mortgagee; they did not know appellees had furnished the money. While appellees state they dealt only with Korpanty and never with the Rosols, this fact does not relieve the Rosols. Where one executes a bond and mortgage in blank and places it in the hands of a third person, he assumes all the consequences of his act. In this case appellants are bound to the actual mortgagees since they received full consideration for their promise to pay.
Appellants seek to be relieved of the amount of the mortgage to the extent of the $2,000 of principal they paid Korpanty, since, at the time they made the payment, they believed, in good faith, that he was the mortgagee. They urge that, notwithstanding the fact that appellants *95
sought out Korpanty to secure the money, appellees had, by their course of dealing, constituted him their agent to handle all matters in connection with the mortgage, including the collection of principal. A debtor pays at his own risk when he pays his debt to another than the person to whom it is owed. Money owed must be paid to the one to whom it is due or his authorized agent. When a debtor pays money to an agent of a creditor, the burden rests upon him to establish agency. This may be done by direct evidence or testimony from which the relation of principal and agent may be implied: Dobbs v. Zink,
While in collecting and remitting interest every six months, Korpanty may have acted for appellees, this did not empower him to collect principal, nor authorize the debtors to pay him as agent.2 Implied agency may arise from previous receipts of principal, which had been approved by the mortgagee: Williams v. Cook,
When appellant and her husband paid Korpanty the principal, they did so at their own risk. They did not ask him to produce the documents; in fact, he did not possess them. They could easily have protected themselves by demanding to see the mortgage and bond and ascertaining in a prudent way his relation thereto. In this they failed. They cannot penalize appellees for this omission on their part. On them rests the blame for creating the situation which permitted Korpanty to appropriate the funds. On them must fall the loss: Browne v. Hoekstra, supra; Wolfgang v. Shirley,
A case nearly identical is that of Peters v. Alter, supra, where the Superior Court affirmed the discharge of the rule to open judgment.
Undoubtedly appellants were badly misused and imposed on, but appellees cannot be held responsible. Appellants' attorney, Korpanty, was the cause of their misfortune and, however much we may sympathize with them, we cannot save them from the results of their misplaced confidence and ignorance.
Judgment affirmed.