Opinion by
While plaintiff’s claim in form is directed against the decedent’s estate, the controversy from a practical standpoint is really one between Margaret Poelcher, a daughter-in-law of the decedent, and Pauline Zink, one of his daughters. Peter Poelcher, the decedent, had eight children who are still living, but in his will he devised one-third of his entire estate to his wife, and, in the event of her prior decease, to his daughter, Pauline, the present defendant; and the remaining two-thirds also to Pauline. Therefore plaintiff’s recovery in this action will be against the property which de *541 fendant obtained from the decedent, of whose will she is also the executrix.
Plaintiff’s claim is on a note under seal for $3,-300.00, dated September 22, 1941, and containing a power of attorney to confess judgment. The note bears Peter Poelcher’s signature. Judgment on the note was entered in 1947 for the principal amount together with interest and attorney’s commission for collection as therein provided. Peter Poelcher lived for seven months after the entry of the judgment, but eleven days after his death Pauline Zink, his executrix, alleging that no consideration had been received by him, obtained a rule to show cause why the judgment should not be opened and she be permitted to enter into a defense. In support of her rule she, and witnesses on her behalf, gave depositions designed to establish failure of consideration, for, while a seal precludes a defense of
want
of consideration, it does not bar proof of
failure
of consideration. In opposition to the opening of the judgment plaintiff produced counter-depositions to show that there had not been any such failure but that consideration had in fact been given. The court below discharged the rule, but we reversed its order
(Poelcher v. Poelcher,
After the case had thus been returned to the court below defendant filed an affidavit of defense to plaintiff’s statement which had accompanied the confession, and in it she asserted that Peter Poelcher had not executed the note as alleged but that alterations had been made to it which rendered it void; other than a claim that the note was barred by the statute of limitations and a general allegation that the decedent did not owe the sum named, no other defense was set forth in the pleading. Subsequently she filed an answer in which *542 she likewise asserted that decedent had not executed the note and that it had been altered and was thereby invalidated, but in this pleading also there was no allegation of failure of .consideration. At the trial plaintiff offered evidence to prove decedent’s signature to the note, presented the note under seal'in evidence, and rested. The court refused a motion for a compulsory nonsuit and defendant then offered testimony concerning the relations between the decedent and his children which the court subsequently ruled out as irrelevant (as it obviously was), and also testimony to establish alleged alterations of the note. The court charged the jury that there was not sufficient evidence to warrant them in finding that there was any material alteration of the note that would affect its validity, and that therefore the only question for their consideration under the pleadings and the evidence was whether the signature on the note was that of the decedent, Peter Poelcher, — that is to say, whether he had executed the note. The jury returned a verdict for the plaintiff. The court refused defendant’s motion for a new trial and defendant now appeals from the judgment entered in plaintiff’s favor.
The sole purpose of opening a judgment entered by confession on a warrant of attorney is to let the defendant into any and all defenses he might have asserted had he not been precluded therefrom by the entry of the judgment. The proceedings being wholly de novo, the duty devolves upon the plaintiff to establish his prima facie case in the same manner and to the same extent as if he had begun by an action in assumpsit instead of entering an ex parte judgment. The burden and the mode of proof remain, in respect to both parties, just as they would have been had the judgment not been entered:
West v. Irwin,
Applying, then, these principles to the present case it is clear that plaintiff established a prima facie right of recovery by proof of the execution of the note and its presentation in evidence, since the opening of the judgment by confession did not, and could not, change the nature of the instrument in suit. Although our order, as in similar cases, provided that defendant should be let into a defense (presumably that of failure of consideration, that being the sole reason advanced by defendant for opening the judgment) defendant, as already stated, did not, in either her affidavit of defense or answer, plead failure of consideration, but only alleged alterations of the note and that decedent had not executed it. Under Pa. R. C. P. 1030, the defense of failure of consideration is purely an affirmative defense which must be so pleaded, — a rule which is merely the expression of a long line of decisions holding that the burden to prove failure of consideration is always upon the defendant. * Pa. *545 R. C. P. 1032 provides that such defense, if not pleaded, is waived.
On the present appeal, defendant’s counsel apparently recognized the effect of the principles and rules thus discussed for neither in the statement of questions involved nor in the argument in his brief is there any contention that the opening of the judgment imposed upon the plaintiff the duty of proving that there was no failure of consideration. Indeed defendant’s original claim of failure of consideration has obviously been completely abandoned, for the statement of questions involved (to which the present appeal is therefore limited) presents but a single contention; namely, that the trial judge should not have sustained plaintiff’s objections to the introduction into evidence of certain enlarged photostats or “blow-ups” of the note. Defendant’s purpose in offering these enlargements was to attempt to show, by increasing the size of the note, some change or variation not visible in the original. They were rejected by the court on the ground that they were not properly verified because the witness who produced thezn was not the party who photogTaphed them nor was he present when they were znade. While it is true that ordinarily a photograph may be admitted in evidence by testiznony other than that of the photographer hiznself if the witness is familiar with the original and thereby able to testify that it is a correct picture of its subject matter
(Thompson v. DeLong,
The main alteration which appeared on the note consisted of a chemical erasure in the upper left-hand corner opposite the dollar sign. There was also some writing-over of three letters in the body of the note, but without any change whatever in the words themselves, and even defendant’s own expert witness admitted that these write-overs were wholly innocent and innocuous. It is, of course, true that when it clearly appears on the face of a writing that it has been altered in a material part it is incumbent on the party producing it to account for the alteration, and until this is done it is not admissible in evidence:
Cornog v. Wilson,
It appears that in his instructions to the jury the trial judge made a slight error in the calculation of the amount of interest and attorney’s commission due, but this error was corrected by the filing of a remittitur ordered by the court.
Judgment affirmed.
Notes
Conmey v. Macfarlane, Admr.,