253 Pa. 264 | Pa. | 1916
Opinion by
This was a scire facias brought by the administratrix of the estate of D. B. Wick, deceased, .against the defendant to recover the amount of a mortgage for $3,000, secured upon property of defendant. The defense was payment. On the trial it appeared that, on February 27, 1911, the defendant borrowed from D. B. Wick the sum of $3,500, and gave him two bonds and mortgages, one for $3,000, being the mortgage in suit, and the other for $500, both payable at the expiration of five years. Defendant alleged that on March 27, 1911, she paid Wick $500 in satisfaction of the smaller mortgage, and that on June 27th and November 27, 1911, she paid him the sums of $2,000 and $1,000 respectively, in satisfaction of the mortgage in suit. It. also appeared that defendant had held receipts purporting to be signed by the decedent, showing the payments as claimed, and certifying that the mortgages had been paid. These receipts were not produced at the trial, defendant claiming that she had lost them. She had in her possession the bonds, and the fire insurance policies which had been assigned as collateral to the mortgages, but the policies were not reassigned to her. The mortgages were not found after Mr. Wick’s death, and they were unsatisfied on the record. Plaintiff claimed that the receipts were forgeries. They had been submitted by former counsel for the defendant to a handwriting expert, and had subsequently been returned to her, and, as she claimed, lost. The expert had, however, preserved photographic copies of the signatures to the receipts, and he testified that they were not in' the same handwriting as decedent’s genuine signature, but were an imitation of a signature not writ
Counsel for appellant also contend that the charge as a whole was unduly favorable to the plaintiff. It does not appear, however, that the charge was in any way inadequate or misleading. That it was favorable to the plaintiff was due to the evasive character of defendant’s testimony, as well as to the uncontradicted evidence of the handwriting expert that the signatures to the receipts submitted to him by defendant’s counsel were not in the handwriting of the decedent, but were copied by tracing from a signature which was not written by him. The trial judge expressly called the attention of the jury to the testimony of defendant and her witness that payments had been made by the former to decedent, and receipts given. He said to the jury: “If you believe that this defendant paid the two thousand dollars on the 7th of June, 1911, on account of this mortgage and she paid the balance of one thousand dollars in November or December of the same year, then your verdict should be for the defendant. If, however, you believe that her story is not true, and that she did not pay that money, then your verdict should be for the plaintiff for the full amount of the plaintiff’s claim with interest.” Time and again, during his charge, the judge cautioned the jury that the weight to be given to the testimony of the witnesses was entirely for them. Counsel for appellant also contend that the fact that defendant had in her possession the bond which accompanied the mortgage in suit, and that she also had the fire insurance policy which the decedent had held as collateral, raised a presumption of payment which was not rebutted. It- is true that the possession by a debtor of a bond or other evidence of his indebtedness raises a presumption of fact that the debt
The judgment is affirmed.