83 Pa. Super. 129 | Pa. Super. Ct. | 1924
Argued March 4, 1924.
The pending question arose on a rule taken by the defendant for judgment in favor of the defendant on the *131
whole record after a trial in which the jury failed to agree. The defendant borrowed from S.D. Stroh, trustee, $5,500 on March 25, 1914; to secure the payment of which he gave to the lender a bond and mortgage. Stroh died on September 12, 1918. Sometime thereafter the use-plaintiffs, in whose behalf Stroh held the fund, caused judgment to be entered on the bond; thereupon the defendant presented a petition to have the judgment opened in order that he might defend to the amount of $2,000 which sum he alleged was paid. After the rule was granted and before it was made absolute, the defendant paid all of the amount due on the judgment except the $2,000 in question. The rule was then made absolute and the case came to trial on the allegation of payment. The evidence of payment was a receipt signed by Stroh, trustee, and the testimony of the mortgagor who was called by the plaintiffs to testify as if on cross-examination. The genuineness of the signature of the mortgagee on the receipt was shown by the testimony of a number of witnesses, and the defendant, when called by the plaintiffs, testified positively to the payment of the amount named in the receipt. The reply to the defendant's case was not that the signature to the receipt was not genuine, but that the money had not been paid to the mortgagee. This was attempted to be done by evidence that the mortgagee's bank account did not show a concurrent deposit of a like amount or a sum near that amount, and that the defendant according to his statement of the transaction paid the amount in money rather than by check. There was an exhaustive examination of the defendant by the plaintiffs' counsel in an effort to show that he did not have the amount of money alleged to be paid at the date the receipt was given. The learned trial judge in disposing of the rule for judgment held that the receipt had not been impeached and that the testimony of the defendant when called by the plaintiffs had not been controverted, and that therefore the defendant was entitled to judgment on the issue. It is now *132
contended by the appellant that the testimony raised an issue of fact which should be submitted to a jury. It is evident that on the receipt and the testimony of the defendant, the latter was entitled to a verdict unless competent countervailing evidence was introduced from which the jury could reasonably find the fact at issue in favor of the plaintiffs. The receipt could not be lightly disregarded. While a receipt is not conclusive evidence and is open to explanation, in the absence of such explanation it is always prima facie evidence of the payment admitted. It is the written agreement of the maker that he received from the payer the amount therein set forth, and as such agreement it stands in the same class as other instruments in writing which express the agreement of contracting parties. Unless fraud, accident or mistake or other weighty reason is made to appear, the law gives to such a document the effect to which its purport entitles it, and the evidence to avoid its effect must be clear and direct: Rhoads's Est.,
The appellants made the defendant their witness and thus by his testimony corroborated the receipt as evidence of the payment of the money. His testimony must be taken as true for we do not find in the case any evidence which contradicts or qualifies it. It is suggested in the argument of the appellant that the witness, Arthur Luce, the husband of one of the use-plaintiffs, testified that in his opinion the signature on the receipt was not in the writing of Stroh, but an examination of the testimony of that witness makes it clear that his opinion was based on the fact that he did not see the signature written. The following is an excerpt from his testimony: "Q. Well, will you say that it isn't (his signature)? Will you say that that isn't his signature? A. I couldn't say it wasn't. I didn't see him write it. Q. Well, now, *134
if you now say that you couldn't say whether that was his signature, then you changed your mind since the time you said it wasn't his signature, didn't you? A. Well, I said it wasn't because I didn't see him write it. Q. Oh, is that the reason you said it? Is that the only reason? A. I couldn't say for sure." Moreover, the case was tried by the plaintiffs not on the theory that the signature to the receipt was not genuine, but on the contention that the money had not been actually paid to Stroh by Holmes. This is apparent from the language of the learned counsel for the appellant on this subject in the brief: "We felt that attacking this signature would only confuse the jury as to the real issue involved, which was not whether the signature to the receipt was genuine; but whether Holmes had actually paid the money due on the bond and judgment in this case." It is of course true that a party calling his adversary to testify as if on cross-examination is not concluded by such testimony, but unless it is impeached by relevant and competent contradiction or qualification, it stands as the evidence of the party calling the witness. This is the doctrine of Dunmore v. Padden,
The judgment is affirmed. *135