126 A. 239 | Pa. | 1924
Argued May 19, 1924. Plaintiffs sued in assumpsit to recover the sum of $1,500, with interest, the amount of a promissory note *115 made by defendant, a married woman, to the order of Addison Sheaffer, dated December 7, 1920, and payable on demand.
The sole defense set up was that the note sued on was made for the accommodation of payee and without consideration. The court below held the testimony insufficient to establish the defense and directed a verdict for plaintiffs. A new trial was refused and defendant appealed. To sustain the defense, defendant relied on the testimony of her son to the effect that he heard plaintiffs' decedent, in the fall of 1920, inform his mother he had destroyed a note made by defendant for $1,500, saying to her, "you need not worry about that any more, that is all fixed up." This was practically the entire testimony adduced to show payment of the obligation. It was, however, without value for that purpose, for the reason it failed to specify the note here sued on and could not have referred to it because it was not given until December 7, 1920, which was subsequent to the alleged conversation, and for the further reason it fell far short of even tending to show the note claimed to have been destroyed was the one given payee as an accommodation and without consideration.
The refusal of the court to permit defendant's husband to testify was not error. Mrs. Brown being incompetent owing to the death of Sheaffer, and she being "a party to the thing or contract in action," for the same reason her husband was disqualified: Bittner v. Boone,
Plaintiffs having made out a prima facie case, the burden was on defendant to establish the defense set up; this she failed utterly to do, and consequently the court below properly directed a verdict for plaintiff.
Judgment affirmed. *116
