Whitmire v. Montgomery, Appeal, No. 146

Appeal, No. 146 | Pa. | Jan 7, 1895

Opinion by

Mr. Justice Fell,

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" court="Pa." date_filed="1860-07-01" href="https://app.midpage.ai/document/baker-v-lukens-6231081?utm_source=webapp" opinion_id="6231081">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 with the established doctrine that the law will not lend its aid to enforce a contract made in violation of a statute, nor set aside such a contract when it has been fully executed by the parties. It refuses to aid either, and leaves them where they placed themselves. Upon the hearing of the application to open judgment in this case it might well have been urged that the agreement that judgment should be entered had been carried into effect, and that the defendant had no standing to appeal to a chancellor unless he could show an equity founded upon the fraud of the plaintiff and not upon the illegality of the date; and the judgment might have been opened on terms that the issue should be confined to the question of forgery. The judgment however was opened without terms, and it was competent for the defendant to make any legal defence. While we cannot approve the answers to these points the error is not ground for a reversal, as the points were badly drawn, and should have been distinctly refused. They both close with the request for instruction that there can be no recovery in the case. This ignores entirely the testimony as to subsequent ratification, which was clearly for the jury.

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.

We have considered the assignments to which the argument was mainly directed, and it is unnecessary to enter upon any detailed discussion of the remainder. We find no objection to the admission of the expert testimonj^. The submission afterward to the jury of the competency of the witnesses to testify as experts, while irregular, did the defendant no harm. The other assignments, except those from the twenty-third to the thirty-first inclusive, which are not in compliance with the rules of court and therefore cannot be considered, relate to the charge. These exceptions present the greater part of the charge in isolated sentences and detached portions which; standing alone, and not read in their connection and explained and qualified by the context, are fairly open to objection. The charge however must be considered as a whole, and judging it as such Ave are not prepared to say that any injustice was done the defendant.

The judgment is affirmed.