Stroh v. Holmes

• Decision Date: 21 April 1924
• Docket Number: 31-1924
• Citation: 83 Pa.Super. 129
• Parties: Stroh, Appellant, v. Holmes
• Court: Pennsylvania Superior Court

83 Pa.Super. 129

Stroh, Appellant, v. Holmes

No. 31-1924

Superior Court of Pennsylvania

April 21, 1924

Argued March 4, 1924

Appeal by plaintiff, from judgment of C.P. Luzerne Co.-1919, No 678, in favor of defendant on the whole record, in the case of S.D. Stroh, trustee, now to the use of Flossie J. Bennetto et al., v. Wheeler H. Holmes.

Framed issue to determine payment of judgment on bond. Before Woodward, J.

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

The case went to trial, was submitted to the jury, and the jury having disagreed, on motion of plaintiff's counsel, the court entered judgment in favor of defendant on the whole record. Plaintiff appealed.

Error assigned was, among others, the decree of the court.

Affirmed.

H. J Mahon, and with him B. B. Lewis, for appellants.

Richard B. Sheridan, and with him W. L. Pace, for appellee.

Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

HENDERSON J.

The pending question arose on a rule taken by the defendant for judgment in favor of the defendant on the whole record after a trial in which the jury failed to agree. The defendant borrowed from S.D. Stroh, trustee, $ 5,500 on March 25, 1914; to secure the payment of which he gave to the lender a bond and mortgage. Stroh died on September 12, 1918. Sometime thereafter the use-plaintiffs, in whose behalf Stroh held the fund, caused judgment to be entered on the bond; thereupon the defendant presented a petition to have the judgment opened in order that he might defend to the amount of $ 2,000 which sum he alleged was paid. After the rule was granted and before it was made absolute, the defendant paid all of the amount due on the judgment except the $ 2,000 in question. The rule was then made absolute and the case came to trial on the allegation of payment. The evidence of payment was a receipt signed by Stroh, trustee, and the testimony of the mortgagor who was called by the plaintiffs to testify as if on cross-examination. The genuineness of the signature of the mortgagee on the receipt was shown by the testimony of a number of witnesses, and the defendant, when called by the plaintiffs, testified positively to the payment of the amount named in the receipt. The reply to the defendant's case was not that the signature to the receipt was not genuine, but that the money had not been paid to the mortgagee. This was attempted to be done by evidence that the mortgagee's bank account did not show a concurrent deposit of a like amount or a sum near that amount, and that the defendant according to his statement of the transaction paid the amount in money rather than by check. There was an exhaustive examination of the defendant by the plaintiffs' counsel in an effort to show that he did not have the amount of money alleged to be paid at the date the receipt was given. The learned trial judge in disposing of the rule for judgment held that the receipt had not been impeached and that the testimony of the defendant when called by the plaintiffs had not been controverted, and that therefore the defendant was entitled to judgment on the issue. It is now contended by the appellant that the testimony raised an issue of fact which should be submitted to a jury. It is evident that on the receipt and the testimony of the defendant, the latter was entitled to a verdict unless competent countervailing evidence was introduced from which the jury could reasonably find the fact at issue in favor of the plaintiffs. The receipt could not be lightly disregarded. While a receipt is not conclusive evidence and is open to explanation, in the absence of such explanation it is always prima facie evidence of the payment admitted. It is the written agreement of the maker that he received from the payer the amount therein set forth, and as such agreement it stands in the same class as other instruments in writing which express the agreement of contracting parties. Unless fraud, accident or mistake or other weighty reason is made to appear, the law gives to such a document the effect to which its purport entitles it, and the evidence to avoid its effect must be clear and direct: Rhoads' Est., 189 Pa. 460; Paige v. Paige, 53 Pa.Super. 311. The evidence introduced comes far short of showing a state of facts which would justify the jury in disregarding the receipt. The effort was apparently to show a fraud on the part of the defendant in procuring a receipt for a larger amount of money than was actually paid. With respect to a charge of fraud great latitude is allowed. Every act and declaration of the party charged with the fraud, and the circumstances of the transaction are competent, if in the opinion of the trial court they bear such relation to the transaction under investigation as in its nature is calculated to persuade the reasonable men in the jury...