169 Pa. 472 | Pa. | 1895
Opinion by
The facts of this case are clearly presented by the statement
On the following day two hundred dollars were paid upon the bond. This action is brought for the recovery of the remainder. The affidavit of defense set up three reasons for resisting a recovery by the sureties. First, that the payment of two hundred dollars upon the bond the day after it was given and before it became due worked such a change in the terms of the obligation as ought in equity to relieve the sureties. Second, that the plaintiffs who have sued as trustees for Local Union No. 100 are not now in office, although they Were when the bond was taken. Third, that the bond was given in settlement for an embezzlement by Kirschner and is therefore invalid. As the first and second of these are obviously without merit, we assume that the learned judge of the court below rested his ruling upon the third, and regarded it as setting forth a good and sufficient ground for á defense by the sureties of Kirschner. Our question therefore is over the sufficiency of the affidavit of defense in so far as this averment is concerned. The averment is that the bond was “invalid in law in that it was given by Kirschner and accepted by the obligors for the purpose of compounding and settling a charge of embezzlement . . . . and after the execution thereof the said obligors in consideration thereof released the said Kirschner from all liability to prosecution for said crime of embezzlement.” There is here no allegation that a criminal prosecution was ever begun or threatened, or that the execution of the bond was asked as the price of releasing Kirschner from liability, criminally, for his embezzlement. What is set out is that the bond was given for the purpose of “ settling a charge of embezzlement,” and that after its execution and delivery “the said obligees in consideration thereof released the said Kirschner from all liability
The bond was signed by the defendants. They undertake to show a reason why they are not bound by their own act in executing it. They must show either that it was given for an unlawful purpose, or that its execution was obtained by unlawful means. The return of the money embezzled by Kirschner was not an unlawful purpose. The agreement by his creditors to accept it in small monthly payments running over several years was not unlawful. The acceptance of the bond as a full equivalent for money that had been embezzled was not unlawful. It is not alleged that any criminal proceedings were instituted against Kirschner, or that any fraud or coercion was practiced upon the defendants. The public had no interest in the transaction which public policy could be invoked to protect, and the defendants were not imposed upon. They have therefore no claim to relief: Bredin’s App., 92 Pa. 241. Riddle v. Hall, 99 Pa. 116, is urged on our attention as a case in point, but it does not so impress us. In that case a prosecution was pending against the son of Mrs. Riddle. Another was threatened against her husband. She was made to believe that if she gave the mortgage it would end both the pending and the threatened prosecutions. She gave it for that purpose. The bank took it with full knowledge. It discontinued the prosecution against the son, but soon after began a new one against both the husband and the son and pushed it to conviction and sentence. She then defended against the payment of her mortgage on the ground that it had been obtained from her by representations intended to mislead and deceive her. She asserted that she was induced to execute and deliver it to save her husband and her son from prosecution criminally by the bank, and that after obtaining it the bank did just what its officers had induced her to believe it would not do if the mortgage was given. In this case no prosecution was ever instituted or threatened so far as the affidavit informs us. There were no proceedings to discontinue at that time, and none have been entered upon at any time since. No fraud or
It is now ordered that the order appealed from be reversed and the record remitted to the court below with directions to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the said court why such judgment should not be so entered.