Simpson's Executor v. Bovard

• Decision Date: 26 January 1874
• Citation: 74 Pa. 351
• Parties: Simpson's Executor <I>versus</I> Bovard.
• Court: Pennsylvania Supreme Court

74 Pa. 351

Simpson's Executor versus Bovard.

Supreme Court of Pennsylvania.

October 29, 1873.

January 26, 1874.

October 29th 1873.

Before READ, C. J., AGNEW, SHARSWOOD, WILLIAMS and MERCUR, JJ.

Error to the Court of Common Pleas of Armstrong county: No. 156, to October and November Term 1873.

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J. V. Painter and D. Barclay, for plaintiff in error.—The judgment having been entered against Campbell, he was not a competent witness: Wolf v. Fink, 1 Barr 435; Kirk v. Ewing, 2 Id. 453; Hunt v. Moore, Id. 106; Bittinger v. Keys, Id. 460; Given v. Albert, 5 W. & S. 333; Parke v. Bird, 3 Barr 361; Irwin v. Shumaker, 4 Id. 199; Norris v. Johnston, 5 Id. 290; Wilkinson v. Turnpike Co., 6 Id. 402; Marshall v. Franklin Bank, 1 Casey 386; Swanzey v. Parker, 14 Wright 455; Saurman v. Bodey, 6 Id. 476; Cambria Iron Co. v. Tombs, 12 Id. 387. The Act of April 15th 1869, sect. 1, Pamph. L. 30, 1 Bright. Purd. 624, pl. 16, does not render Campbell competent. The survivor in a contract is not allowed to testify: Act of April 9th 1870, sect. 1, Pamph. L. 44, 1 Bright. Purd. 625, pl. 20; Karns v. Tanner, 16 P. F. Smith 297. The principal is not bound by acts of his agent not within the scope of his authority: Shelhamer v. Thomas, 7 S. & R. 109; Hannay v. Stewart, 6 Watts 487; Dick v. Cooper, 12 Harris 217; Patton v. Minesinger, 1 Casey 393. The note signed by Bovard and delivered to Campbell in blank was good, although filled with a larger amount than Bovard authorized: Wiley v. Moor, 17 S. & R. 439; Garrard v. Haddan, 17 P. F. Smith 82; Orrick v. Colston, 7 Grattan 189; 1 Parsons on Bills 109, 235; Keyser v. Keen, 5 Harris 327; Grim v. School Directors, 1 P. F. Smith 219; Haskins v. Lombard, 16 Me. 140; Passumpsic Bank v. Goss, 31 Vt. 315; Selser v. Brock, 3 Ohio 302. The notice to enter judgment, &c., should have been clearly proven, and the court should have said whether it was sufficient: Wolleshlare v. Searles, 9 Wright 45; Conrad v. Conrad, 18 P. F. Smith 381; Hellen v. Crawford, 8 Wright 105. Reasonable diligence is a question of law under the sound discretion of the court: Co. Litt. 50.

E. S. Golden, for defendant in error.—The principal in a bond is a witness for the obligee when his testimony would relieve: Lovett v. Adam, 3 Wendell; Miller v. Stem, 2 Jones 383. If the note was to be filled for $1000 and it was filled for more, a recovery on the bond could not be had: People v. Boswick, 32 N. York 445; Schuylkill County v. Copely, 17 P. F. Smith 386; Fertig v. Bucher, 3 Barr 308. As to the notice to proceed, he cited Strickler v. Burkholder, 11 Wright 276.

The opinion of the court was delivered, January 26th 1874, by MERCUR, J.

The first assignment raises the question of the competency of Campbell to testify in behalf of his co-defendant in the judgment. The plaintiff being an executor, and the evidence relating to what transpired during the life of his testator, it is contended that the Act of 15th April 1869 is inapplicable. Prior to this act, the general rule in Pennsylvania undoubtedly was, that a party to the record was incompetent to testify. Generally, a principal debtor is not a competent witness for a surety in an action against the latter. Whenever, however, the suit is ended as to the principal, and the defence made by the surety is personal as to him, as were the facts here, the principal is substantially discharged from the record. Although no regular feigned issue be formed in practice, yet, under the order of court, the trial is in the nature of one and embraces only the parties thereto. Campbell was therefore a competent witness: Talmage et al. v. Burlingame et al., 9 Barr 21. This assignment is not sustained.

The second, fourth, fifth, twelfth, thirteenth and fourteenth assignments will be considered together. They all relate to the execution and delivery of the note. We cannot say there was no evidence that Bovard signed under an agreement with Campbell that the name of a co-security should be procured before the note was to be delivered: but it was weak and unsatisfactory. The evidence indicates merely an expectation in the mind of Bovard that another name would be procured, rather than an agreement that it should be, prior to the delivery thereof. In Hoskins et al. v. Lombard, 16 Maine 140, it was held, that a mere expectation by the surety, that the bond would be signed by another surety although not signed by the other, is binding upon the one signing. It is true there was some evidence that Simpson's alleged agent understood, before the note was drawn, that Campbell was to procure the signature of two sureties for Simpson's benefit, yet there was no evidence that either Simpson or his agent had any knowledge that this was communicated to Bovard, or that he acted upon it. Simpson may well have supposed that the note was prepared to meet his requirement only for two sureties. When the note was presented to him with the name of Bovard only as surety, he was satisfied with it, and waived the procurement of another.

Bovard signed the note in blank and put it into Campbell's possession, with authority to fill it up and to use it in payment of the outstanding note of $1000, which Simpson held against Campbell. Bovard thereby made Campbell his agent to complete the note. In the exercise of his power Campbell filled the note. He added to the $1000 the accrued interest and the bonus agreed upon for the extension. The new note was used in the liquidation and extension of the original debt; that was the purpose for which Bovard signed the note. He clothed Campbell with the apparent authority to fill the note for an amount sufficient...