Shaub v. Shaub

71 Pa. Super. 456 | Pa. Super. Ct. | 1919

Opinion by

Henderson, J.,

The appellant complains of the refusal of the court to open a judgment entered on a promissory note with warrant of attorney to confess judgment where a subscribing witness affixed his name to the note after it was sighed by the appellant and without his knowledge or consent. The note on which the judgment was entered was signed by C. Newton Shaub and C. H. Brubaker. The name of Frank E. Herr appears on the face of the obligation as a witness. It was alleged by the appellant that the signature of the witness was affixed to the paper after he signed it, not in his presence, nor at his request, nor with his knowledge. This averment was not disputed. On this state of facts he alleges there was such an alteration of the instrument as to render it void against him. It may be conceded that the addition of the name of a witness to the signature of a party to an instrument in writing after its execution and without the knowledge and permission of the obligor is a material alteration, but this well-known rule is not to be applied in all cases. The circumstances may be such as to require a different conclusion. Where two or more parties have affixed their names to a writing and the name of a witness is affixed in the place set apart for that purpose on the paper without the knowledge or consent of the complaining party, it does not necessarily follow that the alteration avoids the instrument. The facts in this case present an illustration. The makers of the instrument used a print-* ed blank on which was printed the word “witness” opposite a space intended to be used by a subscribing witness of the signatures. As the witness’s signature appears in the copy of the instrument printed in the paper-book it is not directly opposite either of the names of the makers. Upon its face it would appear that the witness intended to attest the signatures of both of the subscribers, but the evidence shows that the witness only intended to certify as to the signature of C. H. Brubaker. This was all he was asked to do and all he intended to do. There is nothing in the case to show that this was fraudulently done, or with the intention to obtain any advantage. There was no dispute in regard to the signature of the appellant. He admits the execution of the paper. There was no motive on the part of the payee therefore to procure a witness to his signature and no evidence of an intention on his part so to do. It was evidently inadvertence or lack of knowledge of the law which caused the signature of the witness to be attached to the paper without special reference to the name of the maker whose signature was intended to be attested. On such a state of facts, it is competent to inquire into the circumstances of the signing, and where it appears to have been done without connivance or unlawful purpose the signature of the attesting witness would be related to the act which he intended to attest. The authorities supporting this view of the case are fully reviewed by the learned judge of the court below in the opinion filed discharging the rule to open judgment. The appeal is dismissed and the judgment affirmed.