Curry v. Morrison

• Decision Date: 14 July 1909
• Docket Number: 30-1909
• Citation: 40 Pa.Super. 301
• Parties: Curry v. Morrison, Appellant
• Court: Pennsylvania Superior Court

40 Pa.Super. 301

Curry v. Morrison, Appellant

No. 30-1909

Superior Court of Pennsylvania

July 14, 1909

Argued May 3, 1909

Appeal by defendant, from order of C.P. Jefferson Co., Aug. T 1906, No. 775, discharging rule to open judgment in case of Gurnie Curry for use of C.A. Curry, Executor of Gurnie Curry deceased, v. Blair Curry and G. A. Morrison, Executor of James McGee, deceased.

Rule to open judgment. Before Reed, P. J.

The facts are stated in the opinion of the Superior Court.

Error assigned was order discharging rule to open judgment.

A. J Truitt, for appellant. -- The judgment having been entered on an illegal note, the consideration for which is in violation of our statutes and criminally inconsistent with public policy and sound morality and the integrity of our civil institutions, the judgment should be opened: Com. v. Curren, 3 Pitts. 143; Wilson v. Com., 96 Pa. 56; Ham v. Smith, 87 Pa. 63; Bredin's App., 92 Pa. 241; Given's App., 121 Pa. 260; Wilson v. Buchanan, 170 Pa. 14; Nester v. Brewing Co., 161 Pa. 473; Whitmire v. Montgomery, 165 Pa. 253; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173.

Blair and Gurnie Curry conducted their partnership in the hotel business in the name of Blair Curry -- Gurnie being a dormant partner therein. The $ 3,500 note on which judgment was entered was given in this business and was a partnership judgment. The court erred in refusing defendant's offer to show payment by a set-off of that portion of this judgment assigned to him: Martin & Co. v. East End Oil Co., 10 Pa.Super. 582; Seitz & Co. v. Buffum & Co., 14 Pa. 69; Carey v. Bright, 58 Pa. 70; McDonald v. Simcox, 98 Pa. 619; Paxson v. Beans, 3 Phila. 433; Hocking v. Hamilton, 158 Pa. 107; Kenney v. Altvater, 77 Pa. 34; Blair v. Wood, 108 Pa. 278.

W. W. Winslow, with him J. E. Calderwood, for appellee. -- If an act in violation of either statute or common law be already committed and a subsequent agreement entered into which, though founded thereupon, constituted no part of the original inducement or consideration, such an agreement is valid: Lestapies v. Ingraham, 5 Pa. 71; Allen v. Line, 11 Pa.Super. 517; Hipple v. Rice, 28 Pa. 406; Wright v. Pipe Line Co., 101 Pa. 204; Armstrong v. Toler, 24 U.S. 258.

A set-off is inadmissible, unless followed by evidence that the plaintiff accepted and acknowledged it as a credit upon the judgment: Bishop v. Goodheart, 135 Pa. 374.

Unsettled partnership accounts against the plaintiff are not admissible as a set-off: Jenkins v. Anderson, 11 A. 558.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

MORRISON, J.

In this record we find nineteen assignments of error and elaborate printed arguments for the respective parties. But a careful examination of the whole record only discloses to us two important questions. (a) Did the learned court below err in refusing to open the original judgment in favor of Gurnie Curry and against Blair Curry and James McGee? (b) Did the court err in refusing to permit the executor of James McGee, deceased, to set off one-fourth of another judgment against Blair Curry, James McGee, D. W. Michael, Max Klein and the Punxsutawney Brewing Company against the plaintiff's scire facias to revive his judgment? The latter judgment being entered on a note which was not executed and delivered for about one year after Gurnie Curry obtained his note above mentioned. It appears that James McGee was the surety on a note of Wm. A. McGee for $ 2,500, held by the Punxsutawney National Bank, at the time of the sale of an hotel property at Anita, Penna., to Blair Curry. In the purchase of the hotel a note of $ 3,500, dated April 1, 1904, was given to the same bank, signed by Blair Curry and indorsed by James McGee, D. W. Michael, Max Klein and the Punxsutawney Brewing Company, and the $ 2,500 note was taken up. The note of April 1, 1904, was renewed on August 1, 1904, signed by the same persons. Gurnie Curry did not sign either of these notes, and on August 20, 1904, he sold his interest in the hotel property to his brother Blair and left the business for the reason that the Currys had been informed by counsel that it would make trouble if the court found out that Gurnie was interested in a license granted in the name of Blair alone.

On December 12, 1904, judgment was entered on the $ 3,500 note and on March 27, 1905, that judgment, interest and costs, was satisfied of record. On April 1, 1905, a note signed by Blair Curry and the same four sureties for $ 3,200 was given to the Punxsutawney National Bank. On August 4, 1905, judgment was entered on this note and a fi. fa. issued, and Blair Curry became a bankrupt and the four sureties had to pay said judgment, although the one-fourth for which James McGee's estate was liable, he having died in May, 1905, was paid by his executor, he taking an assignment of the portion of the judgment he so paid. At the trial of the scire facias to revive the judgment of Gurnie Curry against James McGee, the executor undertook to set off against the scire facias the portion of the $ 3,200 judgment which he had paid as above stated. This, we think, sufficiently states the history of the case.

The learned court below, on the rule to open the Gurnie Curry judgment, found as a fact that the money which Gurnie had invested in the hotel purchase with his brother, with interest thereon, about equaled the amount of the $ 800 note upon which the Gurnie Curry judgment was entered. The court found from the facts, as a legal conclusion, that the consideration for said note was valid and legal and that no sufficient ground was shown for opening said judgment as against James McGee, the surety. Upon a careful consideration of the whole case, we all concur in this conclusion.

The note was voluntarily executed and delivered by Blair Curry and James McGee for a good and valid consideration, and if Gurnie and Blair Curry were engaged in an illegal transaction in regard to the ownership of the hotel and...