Argued
March 23, 1911
Appeal, No. 61, Jan. T., 1911, by defendant from judgment of
C.P. No. 5, Phila. Co., June T., 1906, No. 5361, on verdict
for plaintiff in case of Nathaniel L. Fountain v. Margaret A
Bigham. Reversed.
Assumpsit
on a bond. Before MARTIN, P.J.
The
facts are stated in the opinion of the Supreme Court.
At the
trial, plaintiff was asked this question:
"Q.
Was it because you got the bond for security for your money
that you did not prosecute him for forgery?"
Objected
to.
Objection
sustained.
Exception.
[1]
"Q.
In your negotiations with A. J. Dunn prior to the signing of
this bond did you agree with him that if a bond were given as
security for the payment of your money that you would drop
the false pretense charge you then had against him and would
not bring against him a charge of forgery which you then and
there did?"
Objected
to.
Objection
sustained.
Exception.
[2]
Defendant
made this offer:
"Mr.
Owens: We will show that this conversation was communicated
with Mrs. Bigham. I offer this testimony for the purpose of
showing that these threats communicated to this witness were
part of a system of threats and coercion brought to bear upon
different members of the families of both defendants for the
purpose of inducing the signing of this bond. These threats
were all communicated to the parties who made the bond.
"The
Court: Were these communications made by the plaintiff?
"Mr.
Owens: Not direct but the parties to whom they were made
communicated them directly."
Objected
to.
Objection
sustained.
Exception.
[3]
"Mr.
Owens: I further offer to prove by this witness that the
threats made against A. J. Dunn by Fountain were communicated
to her and were the inducing cause of her signing this bond,
and was the only consideration therefor.
"Mr.
Laws: I object for the reason that it is incompetent,
irrelevant and not evidence in this case."
Objection
sustained.
Exception.
[4]
The
Court charged in part as follows:
"Therefore
if there was forgery committed by Dunn, and Mr. Fountain knew
that forgery had been committed, and had evidence to prove
it, but in consideration of this bond being given refrained
from prosecuting Dunn for forgery, then the bond is void, and
your verdict should be for defendant.
"Does
the evidence satisfy you that he was in possession of
evidence to prove such a case? Put yourself in his position.
He finds a check drawn to his order, endorsed with his name
not written by him; underneath this is the name "A. J.
Dunn" and the check bears evidence of having passed
through Dunn's bank account. In the Criminal Court, a
defendant cannot be compelled to testify against himself, and
if Dunn was called to the stand to explain how Fountain's
signature was placed on the back of the check he could
decline to incriminate himself. How could Fountain establish
a case of forgery? His name appears on the check; he swore he
did not sign it. Below is the name of Dunn who received the
money. If that should be held to establish a prima facie case
sufficient to call upon Dunn to defend, if he denied that he
signed the name of Fountain on the check that would probably
end further inquiry from him, and if acquitted suit might
follow claiming damages from Fountain for false arrest. It is
not enough that it now, for the first time, has been learned
by Fountain that Dunn caused some one to sign the name of
Fountain, and that his conduct may have subjected him to a
charge of forgery. If you are satisfied that the only crime
of which Mr. Fountain was aware when the bond was executed
was that of false pretense, he had a right to accept the bond
and agree to the settlement of the case."
"Mr.
Fountain seems to have left the matter in the hands of his
lawyer, and testified that he was willing to do anything the
law would allow him to do. Mr. Dunn swore that it was the
distinct understanding that all the charges were to be
withdrawn. Mr. Bley, who acted for Mr. Fountain, denied all
knowledge of such a stipulation, and testified that all they
undertook to do if the bond was signed, was when the case
came up for trial to state in Court that Fountain had
received the bond and endeavor if possible to have Dunn
acquitted. Does the subsequent conduct of the parties support
the evidence of Dunn, that the criminal proceedings were to
be withdrawn? Dunn paid interest on this bond several times.
The case was on the list for trial several times, at none of
which does it appear that demand was made that it should be
submitted; and finally it was tried and resulted in the
acquittal of Dunn. You have heard the testimony relating to
these defenses; that there were threats made to Mrs. Bigham
calculated to operate upon the mind of a person of ordinary
firmness and inspire her with great fear, and to avoid the
disgrace she was induced to do that which she would not
otherwise have done -- sign the bond; that the bond was given
as part of an agreement to suppress the crime of forgery; and
that there was a failure of the consideration for the bond by
reason of the fact that the criminal prosecution which had
been commenced was not withdrawn, but allowed to proceed to
trial."
Plaintiff
presented these points:
"1.
There is no sufficient evidence in this case to set aside the
judgment as to Margaret A. Bigham upon the ground that she
was induced by threats, coercion or intimidation to sign the
bond upon which the judgment was entered."
Answer:
"So much of the point is affirmed. The balance is
refused." [18]
"2.
Margaret A. Bigham cannot set aside the judgment entered in
this case upon the ground that Alphonsus J. Dunn was induced
to sign the bond by threats, coercion or intimidation,
because under the evidence she had knowledge of the alleged
threats, coercion or intimidation before she signed the
bond."
Answer:
"That I affirm." [19]
Verdict
and judgment for plaintiff for $2,500. Defendant appealed.
Errors
assigned amongst others were (1, 4) rulings on evidence
quoting the bill of exceptions; (16, 18, 19) above
instructions quoting them.
The
judgment is reversed with a venire de novo.
Bernard
F. Owens, with him Joseph Levy, for appellant. -- The courts
have uniformly held that all bonds, contracts and agreements,
the consideration of which is the stifling of a charge of
forgery, are void and unenforceable in law: National Bank
v. Kirk, 90 Pa. 49; Bredin's Appeal, 92 Pa. 241;
Riddle v. Hall, 99 Pa. 116; Filson v.
Himes, 5 Pa. 452; Pearce v. Wilson, 111 Pa. 14;
Swope v. Ins. Co., 93 Pa. 251; Conderman v.
Trenchard, 40 Howard Prac. (N.Y.) 71.
Fountain
used a criminal prosecution to enforce payment of a civil
debt: Fillman v. Ryon, 168 Pa. 484; Portner v.
Kirschner, 169 Pa. 472; Baker v. Morton, 79 U.S. 150.
The
bond was executed under the influence of threats and
coercion.
F. S.
Laws of Lewis, Adler & Laws, for appellee. -- The evidence as
to threats was not admissible: Greenfield's Estate, 14
Pa. 489; East Stroudsburg Nat. Bank v. Seiple, 29
Pa. C.C.R. 245; Griffith v. Sitgreaves, 90 Pa. 161;
Zebley v. Storey, 117 Pa. 478.
Before
BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
OPINION
MR. JUSTICE MESTREZAT:
Nathaniel
L. Fountain, the plaintiff, and A. J. Dunn, a real estate
broker, were jointly interested in real estate speculations
in Philadelphia in 1903 and in 1904. To raise funds to carry
on a proposed joint enterprise, Fountain, at the request of
Dunn, executed a mortgage on his real estate, dated December
9, 1904, with the name of the mortgagee presumably in blank,
and left it with Dunn with instructions not to place it
without notice to Fountain. In violation of these
instructions, Dunn, without Fountain's knowledge or
consent, placed the mortgage and received a check for the
proceeds, amounting to $1,164,75, drawn to
Fountain's order. The check was endorsed with
Fountain's name, without his knowledge or consent.
Immediately beneath the endorsement of his name, Dunn wrote
his own name and deposited the check and received credit for
the amount in his bank account. Fountain did not know that
the mortgage had been placed until notice in the foreclosure
proceedings was posted on his property. Dunn does not deny
that he still owes Fountain the proceeds of the check.
About
May 1, 1906, Dunn was arrested on two informations made by
Fountain charging him with obtaining money under false
pretenses. Dunn was held by the magistrate for trial and
subsequently the grand jury found true bills. In 1909 the
cases were tried and the defendant was acquitted.
Dunn,
being indebted to Fountain in various sums, including the
amount of the check, gave the latter, on September 10, 1906,
a bond with warrant of attorney to confess judgment, with
Mrs. Mary A. Bigham, his mother-in-law, as surety conditioned
for the payment of $2,500 in one day after date. Judgment was
entered on the bond on the next day. After two instalments of
interest had been paid on the judgment and default as to the
third instalment, execution was issued. Mrs. Bigham presented
her petition to the court below and, for the reasons therein
set forth, obtained a rule to stay the writ, open the
judgment and let her into a defense. The rule was made
absolute. The case was tried on the plea of non assumpsit,
and having resulted in a verdict and judgment for the
plaintiff, Mrs. Bigham took this appeal. Dunn did not appeal.
Mrs
Bigham alleges that the bond is invalid and not enforceable
against her for the following reasons: (a) it was given in
consideration of compounding a forgery, (b) the consideration
failed because part thereof was the discontinuance of the
prosecutions for false pretenses which were tried, (c)...
