Whitney v. Hopkins

• Decision Date: 26 May 1890
• Docket Number: 142
• Citation: 19 A. 1075,135 Pa. 246
• Parties: F. M. WHITNEY v. JAMES HOPKINS
• Court: Pennsylvania Supreme Court

19 A. 1075

135 Pa. 246

F. M. WHITNEY v. JAMES HOPKINS

No. 142

Supreme Court of Pennsylvania

May 26, 1890

Argued March 18, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF SUSQUEHANNA COUNTY.

No. 142 January Term 1890, Sup. Ct.; court below, No. 244 August Term 1889, C.P.

On June 1, 1889, a judgment in favor of F. M. Whitney against James Hopkins, for $4,765.65, with interest from June 1, 1889, was entered by the prothonotary, upon the filing of articles of agreement, under seal, between F. M. Whitney and James Hopkins, dated April 9, 1884, wherein Whitney covenanted to sell and convey to Hopkins a tract of land in Jackson township, provided that Hopkins performed his covenants therein at the time mentioned, to wit, to pay to Whitney for the said land $4,500, -- $275 on April 1, 1885, and $400 and annual interest on the sum unpaid, annually thereafter, until the full sum of $4,500 and annual interest shall have been paid; the instrument containing the following provision:

"And further, the said party of the second part, in case default be made for the space of three months, in all or any of the above payments, does hereby confess judgment to the said party of the first part, his heirs or assigns, for the whole amount unpaid on the above agreement, with interest and costs, with a release of all errors, waiving the right of appeal and inquisition on real estate and all rights under the exemption laws, and with stay of execution till the respective instalments shall become due."

Indorsed upon the foregoing agreement, when filed, were the following credits: April 1, 1885, $275; April 1, 1886, $520; April 2 1888, $305.

On June 20, 1889, upon the filing of an affidavit made by the defendant, averring that the judgment was improperly entered because the contract contained no such confession as authorized the entry of a judgment against the defendant without suit, the court granted a rule upon the plaintiff to show cause why the judgment should not be stricken from the record, and enjoined the sheriff from selling the property of the defendant upon an execution in his hands until the return day of the rule, the lien of the levy made, however, to remain. Thereupon, the counsel of the respective parties agreed that the rule should be disposed of by the court upon the evidence contained in certain records which are mentioned in the opinion of the court below.

After argument, the court, SEARLE, P.J., on November 25, 1889 filed an opinion which, after reciting the instrument upon which the judgment was entered, proceeded as follows:

No depositions were taken upon the rule to show cause, but it was agreed by counsel that all the files in this case, and in judgments entered against James Hopkins in which Joseph Larney is plaintiff, and Blakeslee is plaintiff, might be considered in evidence. These records show that on the same day judgment was entered upon this land contract and fieri facias issued thereon, other executions were issued against defendant, and the personal property of defendant sold, and the money arising from said sale is still in the hands of the sheriff. The only question in the case is whether the land contract, as filed in the office of the prothonotary, contained sufficient to authorize him to enter judgment against defendant.

The learned counsel for the defendant contended that by the terms of the contract judgment could only be entered after a default had been made for the space of three months, in the payment of any instalment, and then judgment could only be entered for the amount of unpaid purchase money and interest; and that under the ruling in the case of Connay v. Halstead, 73 Pa. 354, no judgment could be entered upon this contract for two reasons: First, that the contract did not show upon its face that there had been a default in a payment for the space of three months, and could not, as the default must occur after the execution of the contract; therefore, the prothonotary would have to look outside of the instrument filed to ascertain a fact upon which the right to enter judgment depended; and second, that the judgment being confessed only for the amount unpaid upon the contract, it was impossible for the prothonotary to ascertain from the instrument itself, how much was unpaid, and he must seek extrinsic evidence of this fact; that the prothonotary has no right to enter judgment upon any confession, unless the instrument clearly gives the amount for which the judgment must be entered.

Connay v. Halstead was a judgment entered upon a confession contained in a land contract, but there was no amount stated in the contract for which the judgment was confessed, or any means of ascertaining the amount by an inspection of the contract itself. The land was sold at a certain price per acre; amount of land to be ascertained from survey. In this contract, the amount of the consideration is given as $4,500, and the terms of payment of said amount given. There are indorsements on the back of this contract of receipts of money on the same; April 1, 1885, of $275; April 1, 1886, of $520; and April 2, 1888, of $305. Could the prothonotary ascertain from an inspection of this land contract when filed, first, whether there had been a default in any payments for the space of three months, and second, what amount was unpaid?

It is almost a universal custom to indorse partial payments made to apply upon bills, notes, leases, bonds, and land contracts, upon the back of such instruments, in lieu of giving memoranda receipts, and frequently when receipts are also given; this is especially true when such instruments call for payments by instalments. It is not to be doubted that such indorsement is as effectual to establish payment as a receipt given. If all the payments made upon this contract have been indorsed upon it, the question of the amount unpaid and the space of time in which a default has been suffered in the time of payments, is a simple question of computation and can be readily ascertained from the examination of the contract. There is no presumption of payment, because by the terms of the contract the payment is past due.

If, in lieu of causing judgment to be entered upon this contract, the plaintiff had instituted suit, and the defendant had filed an affidavit of defence alleging payment of all instalments due, upon the trial the plaintiff would only have to give in evidence the contract; and, in the absence of any evidence of payment by the defendant, the jury would take the contract itself as the evidence of the amount of indebtedness, less the amount of indorsements. The only evidence required would be the contract, to establish both the default of payment and the space of time for which it had been suffered, and the amount unpaid upon the contract. If a jury would be able to ascertain these facts from an inspection of the contract, I think the prothonotary should be allowed to ascertain the same facts from the same instrument.

The power conferred by the act of assembly is amply sufficient to authorize the prothonotary to enter judgment upon the confession contained in the contract filed in this case. The rule is therefore discharged.

Thereupon the defendant took this appeal, specifying that the court erred:

1. In discharging the rule to set aside the judgment.

4. In supporting the judgment so far as to uphold the execution.

The judgment is therefore affirmed.

Mr. E. L. Blakeslee (with him Mr. W. D. B. Ainey), for the appellant:

1. There was no absolute confession of judgment. Whether judgment should be entered, depended, under the agreement, upon whether the defendant was in default of payment for three months, which could be ascertained only by evidence dehors the record. Again; the amount for which judgment was to be confessed was only so much as remained unpaid, which was uncertain, and required extrinsic evidence to show it. Was this judgment, entered on such an instrument, void? By the common law, a prothonotary could not sign judgment virtute officii; he could only enter judgment rendered by the court. The only ways in which a judgment could be entered without trial were by default; by cognovit actionem, after process; by a warrant of attorney to confess, which was limited to cases of debt; or, by a confession, propria persona, in the face of the court. After the revolution, prothonotaries were made justices of the Courts of Common Pleas, but all judicial power was taken away from them again by act of April 13, 1791, 3 Sm. L. 31.

2. By long practice prothonotaries have been permitted to enter amicable actions and confess judgment therein, if by paper filed they are clearly authorized so to do and if they observe all the other rules applicable to such actions, but not to enter judgment in any other way: Cook v. Gilbert, 8 S. & R. 567; McCalmont v. Peters, 13 S. & R. 196; Zerger v. Gonter, 13 S. & R. 58. We define this power, under long practice, carefully, in order to correct the dictum in Cooper v. Shaver, 101 Pa. 547. Unless he was authorized by statute, the prothonotary could not lawfully enter this judgment in the way he did. The act of February 24, 1806, 4 Sm. L. 278, does not give the prothonotary all the powers of an attorney at law to confess judgment: Connay v. Halstead, 73 Pa. 354; 1 T. & H. Pr., 128, 242. The attorney has implied powers, and his authority need not be express in writing: Limbert v. Jones, 118 Pa. 589; Swartz's App., 119 Pa. 208. Not so with the prothonotary. He neither has the power of an attorney, nor is he permitted to practice as such: § 75, act of April 14, 1834, P.L. 355.

3. The act of February 24, 1806, is to be...