157 A. 517 | Pa. Super. Ct. | 1931
Argued October 20, 1931. Judgment was entered for want of a sufficient affidavit of defense. Plaintiffs leased premises in Lancaster to Herbert F. Gebhardt and Clyde M. Swarr. At the foot of the lease, are two contracts of suretyship, one signed and sealed by defendant, Harry T. Gebhardt, and the other by A. Herbert Swarr; each *302 provides that the surety shall be liable for one-half the rent.
This suit for $1,375 is by the lessors against Harry T. Gebhardt on the suretyship contract bearing his name. The denial of liability in the affidavit of defense is as follows: "Paragraph 4 of the plaintiffs' statement is denied and for further answer thereto the defendant avers that he did not request the plaintiffs to enter into said indenture of lease with Herbert F. Gebhardt and Clyde M. Swarr as lessees, and had no knowledge thereof and avers that he did not become surety in writing for the faithful performance of said contract on the part of said lessees and for the payment of one-half the above rent for the reason that on or about the eighth day of February, 1930 [date of the paper] he was suffering with an affliction of the eyes commonly called pinkeye, and because of which he was unable to read; that at said time the said Herbert F. Gebhardt came to him with a paper which he represented to be a guarantee for the payment by the said Herbert F. Gebhardt of the purchase of five hundred ($500) dollars worth of merchandise; that your affiant requested the said Herbert F. Gebhardt to read said paper to him which the said Herbert F. Gebhardt did; that thereupon, your affiant proceeded to sign said papers when the said Herbert F. Gebhardt fraudulently, unlawfully and without the knowledge or consent of your affiant substituted the guarantee of said lease agreement for one of said guarantee of said purchase price of said merchandise, and did obtain the signature of your affiant thereto under the belief by your affiant that he was signing the guarantee for the purchase price of said merchandise as aforesaid. Wherefore your affiant avers that the said guarantee or contract of suretyship as attached to said lease and marked Exhibit `A' of the plaintiffs' statement is not the act or contract of your affiant." *303
That averment is sufficient to prevent summary judgment on the pleadings. In entering judgment the learned court below said: "The misrepresentation, if any, was made by one bearing his [defendant's] own name and in whom he obviously placed confidence. The plaintiff was ignorant of the misrepresentations and in no wise a party thereto. The defendant failed to do what an ordinary prudent man would have done under the circumstances, to wit: to have the instrument read to him by someone else than the one requesting the favor. He placed his confidence in the perpetrator of the fraud if a fraud was committed. The court held that County of Schuylkill v. Copley,
In that case, it was alleged that Copley with his mark had executed a surety bond for Fogarty, collector of taxes. Fogarty defaulted, and the county entered judgment on the bond. Copley asserted that he was illiterate, that he had not executed the bond, or authorized anyone to execute it for him; that on the contrary, he had executed a paper represented *304
to him by Fogarty to be a petition to the county commissioners asking for Fogarty's appointment as tax collector. The county contended that the deception was no defense unless it was shown that the county had knowledge of the fraud before accepting the bond. An issue was accordingly framed for trial — Copley being made plaintiff, and the county defendant — to determine whether the bond, purporting to have been executed by Copley, was in fact his deed. The verdict was for Copley, but a new trial was awarded for error in excluding evidence. The Supreme Court said: "The court below held that the misrepresentation of the contents of the paper avoided it as a bond. The issue, therefore, was the same as if, to a declaration on the bond, non est factum had been pleaded. The instruction of the court was right and follows the distinction stated in Green v. North Buffalo Township,
As appellees contend that defendant must be liable because it is not alleged that they participated in the alleged fraud on appellant, we note at this point that in Schuylkill County v. Copley it was a fact that the county had no knowledge of the fraud perpetrated on Copley before it accepted the bond. *305
We therefore lay aside, as not presenting for decision the point raised by this appeal, cases in which the obligee participated in obtaining the execution of the instrument (Johnston v. Patterson,
In Letvin v. Phoenix Ins. Company,
Judgment reversed with a procedendo.