165 Pa. 253 | Pa. | 1895
Opinion by
A judgment entered in the common pleas in favor of the plaintiff as executor of John Whitmire on a judgment note alleged to have been made by the defendant was opened on the averment that the note was forged and that it was dated on Sunday. Forgery and illegality of the contract were the grounds of defence at the trial. The plaintiff having died, and the defendant being incompetent to testify, there was difficulty on both sides in the attempt to throw light upon the transaction. The thirty-one assignments of error include nearly all that was said or done at the trial, bringing the whole proceeding up for review, and it is difficult to consider them in detail without exceeding proper limits.
The first and second specifications of error are to the answers to the defendant’s third and fourth points. There was an attempt in the answers to draw a distinction between executory and executed contracts, for which there was no ground in this case. The entering of judgment by confession did not make the contract to pay, of which the note was evidence, an executed contract. The agreement to confess judgment onty was executed. When the judgment was opened without terms the contract to pay was before the jury, and upon this the issue was founded. There are expressions in some of the cases which are apparently misleading, but in fact not so when taken in connection with the subject under consideration. It is said in the opinion in Baker v. Lukens, 35 Pa. 146: “ Judgment was regularly entered on the warrant of attorney, and it thus became a contract executed.” The appeal was from the refusal of the court to strike off a judgment entered upon a warrant of attorney dated on Sunday, and the judgment was affirmed upon the ground that the contract to confess judgment had been executed and that the plaintiff was not seeking the aid of the court to enforce an illegal contract, but that the defendant was asking- to be relieved from one which had been carried out, and that without showing any equity. This was in entire harmony
The answer to the eighth point, which is the subject of the third assignment, we cannot but regard as an error upon the part of the stenographer or an inadvertence upon the part of the learned judge, resulting from his misunderstanding of the point. The language is meaningless in the connection in which it appears, and it is evident that it was not intended as an answer to the point. It was either used in some other connection and by mistake placed here, or used under an entire misapprehension of the subject upon which instruction was asked. The rule is that a party is entitled to a distinct and responsive answer to his points if they are properly drawn, present questions that fairly arise, and can be answered by a simple affirmance or refusal. If this was the answer made and it was intentionally made, it was evasive and in effect no answer at all; and if we believed this to be the case we should feel constrained to reverse the judgment and send the cause back. Every question that arose upon the trial was fairly met and passed upon by the learned judge, and as the general charge fully covered the proposition embodied in the point it does not appear that the jury could have been misled by the answer.
The judgment is affirmed.