Welch v. Sultez

• Decision Date: 20 May 1940
• Docket Number: 93
• Parties: Welch, Appellant, v. Sultez
• Court: Pennsylvania Supreme Court

13 A.2d 399

338 Pa. 583

Welch, Appellant, v. Sultez

No. 93

Supreme Court of Pennsylvania

May 20, 1940

Argued March 25, 1940.

Appeal, No. 93, March T., 1940, from judgment of C.P. Beaver Co., Dec. T., 1936, No. 13, in case of Steve Welch v. George Sultez. Judgment affirmed.

Proceedings after opening of judgment. Before WILSON, J.

The opinion of the Supreme Court states the facts.

Jury disagreed and motion for judgment on the whole record dismissed, before READER, P.J. and WILSON, J., opinion by WILSON, J. Plaintiff appealed.

Errors assigned, among others, were order opening judgment and refusal of plaintiff's motion for judgment on the whole record.

The judgment is affirmed.

Wm. A McConnel, of Wm. A. McConnel & Sons, with him Richard A McConnel, for appellant.

Eugene A. Caputo, for appellees.

Before SCHAFFER, C.J., MAXEY, DREW, LINN, STERN, BARNES and PATTERSON, JJ.

OPINION

MR. MAXEY JUSTICE:

The first assignment of error in this record is to the order opening a judgment; the third is to the refusal of plaintiff's motion for judgment on the whole record after the jury disagreed on the trial of the issue: Act of April 20, 1911, P.L. 70, 12 PS sec. 684.

Defendant and his wife gave to plaintiff their judgment note dated October 24, 1934, for $5,100, maturing one day after date with a warrant to confess judgment. On September 11, 1936, judgment was entered against both defendants and on August 10, 1938, a fi. fa. issued. Defendant, George Sultez, then applied to have the judgment opened. His co-defendant, Mrs. Sultez, died in February, 1938, and by her death, the defendant, Sultez, became the sole owner of certain real estate theretofore held by them by the entireties and on which the sheriff levied. The plaintiff is the son of Mrs. Sultez and the stepson of the surviving defendant.

The petition to open the judgment averred that plaintiff "paid no consideration" and that the note "was obtained . . . by fraud and misrepresentations." "SIXTH: That the said Steve Welsh represented to your petitioners that the note was to have been for the purpose of discounting the same, and the proceeds of which were to be used for the purchase of a farm, and further, that he, the said Steve Welsh, would assume to support the said George Sultez, alias George Soltesz, for the remainder of his life, to pay all taxes on the real estate owned by the said George Sultez, alias George Soltesz, and his wife, and to pay all other household expenses." "SEVENTH: That the said Steve Welsh did not discount the said note, nor did he ever make any effort to do so, nor did he ever purchase a farm or make any effort to purchase a farm, as had been represented by him to the said George Sultez, alias George Soltesz and his wife, nor did he pay the taxes as he had promised to do at the time the note was given by your petitioner, nor did the said Steve Welsh contribute anything towards the support of the said George Sultez, alias George Soltesz, nor ever make any effort to do so."

Plaintiff's answer to these averments was both in fact and law totally unresponsive. The answer discloses no consideration whatsoever for this note. It merely states the conclusion that there was adequate consideration. We are kept entirely in the dark as to what that consideration was. The 6th paragraph of the answer says: "The purpose of the note was based upon consideration known to all parties thereto and that the proceeds were to be used for any purpose that the plaintiff saw fit." The 7th paragraph admits that plaintiff did not discount the note and did not purchase a farm and did not pay the taxes. Plaintiff is completely secretive as to the consideration. In the case of Zajaczkowski v. Jawer, 36 Pa.Super. 324, Judge ORLADY, speaking for that court, said: "The defendant further alleges 'that he received no consideration from the said Bernard Mialistzkey for the said note, and that it was not intended to create any liability against the petitioner.' The answer filed by the plaintiff averred that the note was given to him by defendant; that he had received a true, good and valuable consideration for the same; . . . It is apparent on examination of the petition and answer that the whole transaction is not disclosed, and that the plaintiff is designedly withholding the true facts in regard to it. Assuming that the petition was sufficient to warrant the court in granting the rule to open the judgment, the answer, as filed by the plaintiff, is so manifestly evasive in not averring the real consideration for the note, as well as the purpose of its execution, that the court below was fully warranted in treating the plaintiff's judgment with suspicion. No testimony was taken, and in order to sustain the judgment, the court below would be expected to conclude, as a chancellor, that the note was for a good consideration. . . . In order to arrive at this conclusion, the court should be impressed with the truth and frankness of the plaintiff's answer, and we see no error in holding the plaintiff to a higher degree of proof and more specific statement of his claim than he submitted in reply to the defendant's petition that the note was without any consideration, was given to another party, and was not intended to create any liability. . . . The only question before us is whether the court below rightly exercised its discretion on the evidence before it, and applying the well-settled principles announced in many cases decided in the Supreme and in this court, we see no error in making the rule absolute, and in allowing the parties to thrash out their mysterious controversy before a jury." We are here met with the same proposition: a petition by the defendant showing facts that warrant the conclusion that there was a total failure of consideration for the obligation and the plaintiff's answer "manifestly evasive in not averring the real consideration for the note, as well as the purpose of the execution." The court below in opening the judgment properly held "that the matters set forth in the defendant's petition for rule to open judgment are sufficient." On this state of the record no testimony needed to have been taken to warrant a court in opening the judgment and submitting the question of fact as to the failure of consideration to a jury: Zajackowski v. Jawer, supra, and George v. George, 318 Pa. 203, 178 A. 25. When the depositions however were taken on the rule to open the judgment, they were taken only in behalf of the defendant although the plaintiff is held "to a higher degree of proof" since his answer was not responsive. The defendant in the depositions was handicapped in the interpretation of his testimony by an incompetent interpreter, a condition that the court below properly took notice of by reference in its opinion to "his difficulties in communication." These depositions, however, showed that the defendant "never seen a penny" from the plaintiff for "the support of [himself], [his] wife, or for the maintenance of [his] property," and when the plaintiff was called as for cross-examination for the defendant's depositions, while at times he talked of his then deceased mother having "had all receipts for all the money that I gave her," he also, when asked if he gave defendant anything for that note, flatly stated: "No, I didn't give him anything," and when further interrogated whether the defendant signed it willingly or whether he had to use persuasion, stated: "He signed it. I told him my mother had the receipts and he had to sign it [italics supplied]." Defendant reiterated what he had already stated in his petition that "when he signed the note" plaintiff promised to keep him "as long as he lived." Defendant testified further that two weeks after he signed the note, the step-son (plaintiff) refused to support him and defendant went around begging groceries and plaintiff said to defendant as to this: "As long as you bring it in it is all right." Defendant testified that plaintiff had not given him a penny in the past four years prior to the making of the depositions in 1939. When one takes into consideration the plaintiff's unresponsive answer, his failure to take depositions to sustain his judgment, and the relationship of the parties, the separation of the mother and step-father when the note was signed, the plaintiff's complete failure to produce or even account for the failure to produce the receipts which he said was in his mother's possession (since they were alleged to be receipts to him from his mother, they should have been in his possession), the action of the court below in opening the judgment cannot be adjudged error. See George v. George, supra.

Further when depositions were taken on the rule to open judgment, it was agreed by counsel ...