Second Nat. Bank of Altoona v. Dunn

• Decision Date: 03 October 1892
• Docket Number: 151,152,153,150
• Citation: 25 A. 80,151 Pa. 228
• Parties: Altoona Second National Bank v. Dunn, Appellant; Gardner v. D. A. Dunn, Appellant; Gardner v. Agnes Dunn, Appellant; Gardner v. Annie Dunn, Appellant
• Court: Pennsylvania Supreme Court

25 A. 80

Altoona Second National Bank v. Dunn, Appellant; Gardner v. D. A. Dunn, Appellant; Gardner v. Agnes Dunn, Appellant; Gardner v. Annie Dunn, Appellant

151 Pa. 228

Nos. 150, 151, 152, 153

Supreme Court of Pennsylvania

October 3, 1892

Argued April 19, 1892

Appeals, Nos. 150, 151, 152, 153, July T., 1891, by defendants, Maggie Dunn, D. A. Dunn, Agnes Dunn and Annie Dunn from orders of C.P. Blair Co., Oct. T., 1887, Nos. 492 542, 543 and 544, refusing to open the several judgments in the respective cases.

Rules to open judgments.

The facts appear in the opinion of the court below, by DEAN P.J.:

"Edward T. Dunn, son, and Ellen Dunn, mother, had borrowed from the Second National Bank, of Altoona, this plaintiff, at different times, money aggregating in amount ten thousand dollars; the borrowers became involved in real estate and building speculations in Altoona; the bank became alarmed and called for security on its loans; Edward T. Dunn agreed to obtain judgments from his sisters and brother as additional sureties to the amount of ten thousand dollars; he did so; the bank entered up the judgments; the defendants ask that they be opened because of misrepresentations in obtaining and because they were without consideration.

"Edward T. Dunn, the original debtor, testifies that H. A. Gardner, cashier of the bank, asked him to give additional security, judgments of his sisters and brother; that if this were done then the bank would advance him three or four thousand more; on this promise he agreed to do so; went to his sisters and brother; obtained from Annie, Agnes and Daniel, three judgment notes, each in the sum of $3,333.33, making altogether $10,000. Maggie signed a joint judgment note with her mother and Edward for two thousand. He further testified, that to obtain these judgment notes from his sisters and brother he represented to them that, if they signed them, the bank would give him three or four thousand dollars more to relieve his pressing necessities; further that, after obtaining the security demanded and delivering the notes to the bank, further loans were refused, and his total insolvency followed leaving his sisters and brother answerable for the debt.

"This statement of Edward T. Dunn is denied by the testimony of H. A. Gardner, cashier; he says when he learned that Edward T. Dunn and his mother were on the verge of insolvency he sent for Edward, and asked him to give further security, on the ground that the bank had been accommodating in the past; and that if such security were given the claim would not be immediately pressed for payment; Edward expressed a willingness to get his sisters and brothers as sureties, and mentioned that already executions had been issued to the amount of four or five hundred dollars and levy laid on his mother's household goods; the bank agreed to pay these off, and did so; as his brother lived at Baltimore and his sisters at Pittsburgh his expenses to go and see them were advanced by the bank; he returned with the three notes, each in the sum of $3,333.33. Maggie lived in Altoona, and she joined her brother and mother in the $10,000 note.

"There is here a direct conflict in the testimony. Edward swears that, as a consideration for his obtaining the additional security, the bank was to advance him three or four thousand dollars more; that his sisters and brother became his sureties because of this promise, believing he would be able to tide over his difficulties and pay his debts finally if at that juncture he could obtain a further loan of three or four thousand dollars. H. A. Gardner, cashier, positively denies making any such promise; he says the motive of Edward to obtain additional security, was gratitude for past favors, further indulgence as to time, and the payment of the executions then pending.

"The testimony of John P. Levan, the president of the bank, Dr. Robert W. Christy, who called upon Dunn, at request of bank, to urge him to give security, and John A. Doyle, Esq., at the time counsel for Dunn, to some extent corroborates that of H. A. Gardner. Nor is there anything in the circumstances surrounding the transaction which makes Dunn's statement more probable on its face than Gardner's.

"Taking, then, the testimony as it stands from the manifest weight of it, a jury ought to find, there was no misrepresentation on the part of Gardner to Dunn to obtain the notes. If there was no misrepresentation, then Dunn and his mother obtained all the advantage promised; the executions then pressing were paid off by the bank, and further time on their ten thousand dollar loan was had; this was sufficient consideration to sustain the promise to pay on the part of each one of the sureties; a positive benefit accruing to the original debtor.

"[The rules to open the judgments in each one of the fi. fa.'s, Nos. 39, 40, 41, June term, 1888, obtained by Agnes, Annie and Daniel Dunn; also, rule in No. 38. fi. fa. to March term, 1888, obtained by Maggie Dunn, are discharged.]" [2]

Errors assigned were (1) discharge of rules; (2) above decree, quoting it; (3-6) discharge of rule in each case.

For these reasons the decree of the court below is reversed and a procedendo is awarded.

John G. Johnson and Martin Bell, John D. Blair with them, for appellants, cited Royer v. Bank, 83 Pa. 248; Carpenter v. Bank, 106 Pa. 170; Simpson v. Bovard, 74 Pa. 361; Weigley v. Conrade, 132 Pa. 151.

Aug. S. Landis, with him Greevy & Patterson and Wm. S. Hammond, for appellees, cited Jenkintown Bank's Ap., 124 Pa. 337; Applebee's Ap., 126 Pa. 385; Wernet's Ap., 91 Pa. 319; Com. v. Titman, 1 Adv. R. 497.

Before PAXSON, C.J., GREEN, WILLIAMS, MITCHELL and HEYDRICK, JJ.

OPINION

MR. HEYDRICK, JUSTICE:

Conceding that the learned court below was justified by the evidence in the finding that "there was no misrepresentation on the part of...