Wolfe v. Scott

• Decision Date: 03 January 1923
• Docket Number: 3
• Parties: Wolfe v. Scott, Appellant
• Court: Pennsylvania Supreme Court

119 A. 468

Wolfe v. Scott, Appellant

275 Pa. 343

No. 3

Supreme Court of Pennsylvania

January 3, 1923

Argued September 27, 1922

Appeal, No. 3, Oct. T., 1922, by defendant, from judgment of C.P. Cambria Co., Sept. T., 1918, No. 16, on verdict for plaintiff, in case of George E. Wolfe v. T. J. Scott. Affirmed.

Issue to determine validity of judgment. Before REED, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned were various rulings and instructions, sufficiently appearing by the opinion of the Supreme Court.

The judgment is affirmed.

Donald E. Dufton, for appellant. -- Fraud is never presumed but must be affirmatively proved: Jones v. Lewis, 148 Pa 234; Thompson v. Lee, 3 W. & S. 479; Snayberger v. Fahl, 195 Pa. 336; Pocono Springs Water Ice Co., v Ice Co., 214 Pa. 640.

Philip N. Shettig, with him A. Lloyd Adams, for appellee.

Before MOSCHZISKER, C.J., FRAZER, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

Plaintiff presented a petition in the court below for an issue to determine whether or not a judgment note made by Cornelius Mooney, in favor of defendant, was given collusively, without consideration, and with intent to defraud creditors of the makers of the obligation. An issue was awarded and on trial the jury found the existence of fraud and defendant appealed from judgment entered on the verdict.

It appears from the evidence that Grace Mooney borrowed $3,600 from the First National Bank of Johnstown, giving her note as security, which was renewed several times previous to her death. Subsequently her two sons, James and Cornelius, her sole heirs, renewed the obligation from time to time by giving their joint note, until the bank, desiring to carry it no longer, assigned the paper to the present plaintiff; thereafter, on December 5, 1916, the makers executed to him, in place of the assigned note, a new judgment obligation in the sum of $3,685.69, payable in thirty days. On behalf of plaintiff there is evidence this last note was given with the express understanding that the Mooneys would, within a short time, sell the real estate inherited from their mother and out of the proceeds pay this indebtedness and that, in reliance upon these statements, plaintiff refrained from procuring a lien against the property of the makers by entering judgment on the note. On December 19, 1916, Cornelius Mooney conveyed to James his share in the property inherited from their mother; on the same day James Mooney, without consideration, conveyed the entire property to defendant; and, on January 4, 1917, Cornelius executed and delivered to defendant, without consideration, a judgment note in the sum of $1,815, which was promptly entered of record and became a lien on the real estate of the maker. Plaintiff at once entered judgment on his note and presented the petition in this case for a rule to show cause why an issue should not be awarded to determine whether the note given defendant was collusive and made with intent to defraud creditors.

The first assignment of error complains of the action of the trial judge in overruling an objection by defendant to plaintiff's offer of proof, the objection being that the offer included matters not material to the issue and also occurrences to which the witness would be incompetent to testify. The offer was broad in its scope, covering not only the matters proposed to be proven by the witness then on the stand, but also elements to be established by other evidence. We cannot assume the evidence to be subsequently produced would prove incompetent for the purpose stated, and, as the witness then on the stand was competent to testify to at least a portion of the matters included in the offer, the objection was premature and properly overruled. It may be observed further that the assignment is not in proper form. Instead of quoting the offer objected to, it contains merely a summary stated in the language of counsel. It also fails to include the exception taken and the ruling of the court. In no respect does it comply with our rules, which require the offer to be quoted verbatim and the...