135 Pa. 239 | Pa. | 1890
Opinion,
The judgment in the court below was entered by the prothonotary under the authority of the act of February 24,1806. The defendant moved to strike it off, alleging that the confession in the instrument on which the judgment was entered was to be operative upon a condition, the happening of which could not be determined upon the face of the instrument, and that for this reason the prothonotary had no right to enter the judgment. This is the only question raised on this record.
• The instrument on which the judgment was entered is in the form of an agreement, and bears date the 13th September, 1887. It contains the promise or agreement of the defendant to treat his wife kindly, and, among other things, to permit her to visit her parents, and attend church. Then follow these words: “ I hereby acknowledge that I have received from my said wife Mary R. Richards the sum of three hundred and sixty dollars which I have used in payment of my property for which I hereby confess judgment with interest and costs and release of errors Should I violate the above agreement, and
It is apparent that serious difficulties had arisen between the parties, who were husband and wife, and that the husband had undertaken to do two things: First, to treat his wife kindly, and accord to her privileges that should never have been denied; second, to return to her the amount of her separate money, which he had used, but which he had no right, legal or moral, to withhold from her. His agreement to do both these things was put in writing, and the unlearned scrivener undertook to secure the performance of both by something more than a simple promise. The payment of the money could be secured by a confession of judgment, and a confession was accordingly incorporated into the agreement. To secure the kind treatment, a bond with a penal sum was added, which was to be void only when the agreement was “ fully complied with in full and in good faith.” The confession of judgment was in the usual form, thus: “ I hereby confess judgment, with interest and costs and release of errors.” But the defendant insists that the words which follow the confession refer to and qualify it. They are: “ Should I violate the above agreement, and give the annexed bond for the faithful performance of my part of the foregoing.” This construction would make the right of the plaintiff to have judgment for the money due her depend on whether the defendant kept his agreement to treat her well, a fact that could not be ascertained from the face of the paper. Such a construction would deprive the confession of any value whatever; for, if the defendant did treat her well, it could not be used, because of the condition;
We feel very sure that such a construction is not in accordance with the intention of the parties, and ought not to prevail. If the word “and” be transferred from where it' now stands in the clausé under consideration, just after the word “ agreement,” to the beginning of the sentence, it would read thus: “ And, should I violate the above agreément, I give the annexed bond for- the faithful performance of my part of the foregoing.” This would leave the confession complete and unconditional, and make the sentence that follows a mere recital of, or reference to, the fact that a bond had been given to secure the performance of the agreement so far as it related to other subjects than the payment of money. The money was secured by the confession of judgment. The kind treatment was secured by the bond. While this paper is not free from difficulty, and was drawn in so obscure and inapt terms as to furnish room for the contention of the appellant, we are nevertheless of opinion that it is capable of a construction that gives effect to the power of attorney, and the intentions of the parties. So understood, it authorized the entry of the judgment by the prothonotary, and the refusal to strike it off was there-, fore right.
The judgment is accordingly affirmed.
