Sears v. Birbeck

• Decision Date: 23 March 1936
• Docket Number: 67
• Citation: 321 Pa. 375,184 A. 6
• Parties: Sears v. Birbeck (et ux., Appellant)
• Court: Pennsylvania Supreme Court

184 A. 6

321 Pa. 375

Sears v. Birbeck (et ux., Appellant)

No. 67

Supreme Court of Pennsylvania

March 23, 1936

Argued January 22, 1936

Appeal, No. 67, Jan. T., 1936, by defendant, from judgment of C.P. Lackawanna Co., Jan. T., 1929, No. 467, in case of David D. Sears v. Harry C. Birbeck et ux. Judgment reversed with a venire.

Proceeding upon a feigned issue after opening of judgment. Before LEACH P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned, among others, were various parts of charge.

The judgment is reversed with a venire.

Carlon M. O'Malley, with him J. Julius Levy, for appellant.

George Morrow, for appellee.

Before KEPHART, C.J., MAXEY, DREW, LINN and BARNES, JJ.

OPINION

MR. JUSTICE MAXEY:

On November 28, 1928, Harry C. Birbeck and Hannah Birbeck, husband and wife, signed a judgment note in which they promised to pay David D. Sears, or assigns, one day after date, $5,000, with interest and attorney's fee of 10% for collection. Two days later, judgment was entered against the defendants. Execution was issued and levy made upon the household goods of Mrs. Birbeck. Thereupon she filed a petition to open the judgment, alleging that she was a married woman when she signed this note and that she signed it as a guarantor or surety for one Karl Rogowski, to whom Sears actually made the loan, and that she, Mrs. Birbeck, received no part of the proceeds. The rule to open judgment was made absolute. A trial was had. The verdict was for plaintiff. This appeal followed.

The plaintiff testified that the judgment note in question was brought to him by Rogowski. He talked to Mrs. Birbeck after he got the note and she admitted it was her signature. He was asked if Mrs. Birbeck ever asked him for a loan of $5,000 prior to the signing of this note. He answered: "No." He was asked on cross-examination: "The first time you met Mrs. Birbeck with reference to this particular note was on the day that you came to her home to present her with a check for five thousand dollars?" He answered: "Yes." He testified the check was presented to her, that she endorsed it, and that he gave the check to Karl Rogowski. He accompanied Rogowski to the bank where the check was cashed. Rogowski gave him $750 out of the proceeds.

Mrs. Birbeck testified to the fact that she was a married woman on the day the note was signed, and that on that day Rogowski (who was the president of Bordeaux Mineral Water Company, later defunct, which employed her son-in-law) came to her house to obtain her signature to the judgment note. Shortly thereafter Mr. Sears came to her home. She testified that she said: "I don't know anything about notes," and that Rogowski said: "It is only for accommodation; it will be paid in sixty days." She then signed it. She received nothing from the proceeds. She never asked Sears for any loan. She was not previously acquainted with him. Sears brought her the check for $5,000 and she endorsed it and Sears took it. She testified further that after the check was endorsed by her and delivered to Sears, Rogowski told her he would give her 1,000 shares of stock in the Bordeaux Mineral Water Company "as collateral security." These she never received. She was asked on cross-examination: "Q. Why did you give the note to Mr. Sears? A. For Carl Rogowski. Q. What did he want the money for? A. Well, he needed it, I suppose." It was testified that her husband, one of the defendants, was unable to attend the trial because of the infirmities of age.

Plaintiff was recalled to the stand and testified that when he cashed the check and delivered the $5,000 to Rogowski, that the latter turned over to him $750. His explanation was: "He was paying me back money that I advanced him on the five-thousand-dollar note the night before Thanksgiving." This "advance" was made before the $5,000 note was signed by Mrs. Birbeck. Sears was asked by defendant's counsel: "You told us this morning that Mrs. Birbeck never came to you and asked for this loan?" He answered: "Yes, sir." Later the witness said: "I advanced him that [$750 to Rogowski] after I had the note." He was asked: "Did you ever say that you wouldn't 'loan Rogowski any money until I have Mrs. Birbeck's judgment note?' A. I might have said that."

The witness was then asked whether or not in his deposition of February 1, 1932 [on the rule to open judgment], the following question was asked and whether he made the following answer: "Did you loan Carl Rogowski money as a result of this transaction on the strength of the guaranty or surety of Hannah Birbeck?" Answer (in the deposition): "I wouldn't loan Rogowski any money until I had Mrs. Birbeck's judgment note." He answered: "I think I did." He then explained in answer to a question by his own attorney, that the loan he referred to was the $750 loan to Rogowski.

Defendant, having satisfactorily explained the absence from the trial, of Karl Rogowski, put in evidence his deposition, taken in 1932. Rogowski explained the origin of this note as follows: "I called Mr. Sears on the telephone and asked him to come over and see me at the Hotel Casey . . . and I asked him if he would discount a note signed and guaranteed by Mrs. Birbeck and Mr. Birbeck and by the Bordeaux Mineral Water Company of Stroudsburg. I had given Mr. Sears a note and Mr. Sears suggested or said he would not discount the note unless Mrs. Birbeck and Mr. Birbeck would sign a different note for that purpose, so we went up to Mr. Birbeck's and Mrs. Birbeck's, delivered the judgment note, Mrs. Birbeck signed and Mr. Birbeck signed." "Q. And did he say he would loan you any money on any condition? A. Only on the condition that Mrs. Birbeck would guarantee the loan. Q. And did he require any particular type of note? A. It was a judgment note." He testified that after the note was executed Sears "made a check out for five thousand dollars, we went back to Mr. and Mrs. Birbeck's. Mrs. Birbeck endorsed the check and we, Mr. Sears and myself, went to the bank . . . and the transaction was finished in the bank. . . . Mr. Sears cashed the check at the bank and he gave me the money due to me. . . . Q. And after he [Sears] received the cash did he turn any money over to you? A. Yes. Q. What amount? A. I would not say definitely, I do not remember if I paid him a bonus of five hundred or seven hundred and fifty dollars, but I paid him a bonus. . . . To the best of my recollection [it was] five hundred dollars." He testified that Mrs. Birbeck never received any part of the proceeds of that loan. He was asked: "To the best of your knowledge, did Mrs. Birbeck ever receive anything in consideration for her endorsement on the check in question, or her endorsement on the judgment note? A. No, not in this case. Q. And the check that you have already spoken about in the amount of five thousand dollars was handed over in consideration of the five-thousand-dollar judgment note, was that right? A. Correct." He testified that he asked Mrs. Birbeck for an accommodation and that was the reason she signed the note. Rogowski testified: "He [Sears] put it [the check] on the table, she endorsed it and he took the check back." He testified that "for this accommodation I did not give her anything and I didn't promise her anything. . . . I know the true facts about it." He denied that Sears had said to Mrs. Birbeck, "I am giving you this money and expect you to pay for it." He testified that "for this note transaction she [Mrs. Birbeck] didn't receive any stock." He testified further as follows: "I asked her to guarantee a payment of five thousand dollars, she considered it and she says -- Mr. Birbeck didn't object from the beginning, but Mr. Birbeck thought he would have a hard time persuading Mrs. Birbeck to sign, and I talked to her and finally she says she would do it, accommodate me, to sign the note."

On rebuttal Sears denied that Rogowski had said in his presence at the Birbeck home that this note was for accommodation. He admitted that the check was taken by him to the Birbeck home on November 30th, endorsed by Mrs. Birbeck, and cashed at the bank the same day.

There is in this record abundant evidence, even from the plaintiff himself, to warrant a finding that Mrs. Birbeck signed the note merely as an accommodation for Rogowski and that Sears well knew it. However, the case is for the jury, subject to the duty of the court to grant a new trial if a verdict is "plainly contrary to the evidence": Duane v. Miercken, 4 Yeates 437, 440. (See McGlinn Distilling Co. v. Dervin, 260 Pa. 414, 103 A. 872.) Appellant complains of a ruling by the trial judge on the matter of evidence and contends that the charge was, inter alia, "erroneous, inadequate and prejudicial."

The second assignment of error is based upon the court's overruling defendant's objection to the question put to the witness David D. Sears, as follows: "Q. At the time you gave Rogowski this seven hundred and fifty dollars was there any understanding at that time how this money was to be paid back to you and when? A. Mr. Rogowski said" -- defendant's counsel then objected "to what Rogowski said unless it was in the presence of Mrs. Birbeck." The court overruled the objection. Defendant excepted. The witness answered: "Mr. Rogowski said he had to have money for his payroll. He brought me the judgment note for five thousand dollars and wanted me to give him the money, and I said, 'No, I am loaning the money to Mrs. Birbeck.'"

An examination of the record shows that Sears does not claim at any time that he told Mrs. Birbeck that he was making the loan to her. In fact, he admitted that Mrs. Birbeck never asked him for a loan of $5,000. The only place in the...