Williams et al. v. Caples

Full title: Williams et al., Admrs., Appellants, v. Caples

Court: Supreme Court of Pennsylvania

Date published: Apr 15, 1940

12 A.2d 566 (Pa. 1940)

12 A.2d 566

Opinion

March 26, 1940.

April 15, 1940.

Judgment — Opening — Evidence — Payment — Jury question.

On appeal from an order opening a judgment which had been confessed on a note, it was held, upon consideration of all the evidence, that it was sufficient to go to a jury on the question of payment.

Argued March 26, 1940.

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

Appeal, No. 35, March T., 1940, from decree of C. P. Cambria Co., Sept. T., 1938, No. 387, and Sept. T., 1939, E. D. No. 53, in case of George Walker Williams et al., administrators, v. W. S. Caples. Judgment affirmed.

Petition to open judgment.

The opinion of the Supreme Court states the facts.

Rule to open judgment entered on a promissory note by confession made absolute, before McCANN, P. J., and GREER, J., opinion by GREER, J. Plaintiffs appealed.

Error assigned, among others, was order making absolute rule to open judgment.

Philip N. Shettig, with him LeRoy J. Scanlon, Edward J. Harkins and Thomas A. Swope, for appellants.

Harry Doerr, with him D. P. Weimer, for appellee.

PER CURIAM, April 15, 1940:

This appeal is from an order opening a judgment which had been confessed on a note for $3,500, dated August 14, 1931, maturing one day after date. The proposed defense is that the note was paid by being included in subsequent obligations. Early in 1932, plaintiff's decedent acquired additional notes of defendant amounting to $49,500 and took a bond and mortgage for the sum of both debts, $53,000, with interest at 4%. In September, 1934, the debt was reduced to $52,200 and a new bond and mortgage for that amount payable at the end of 10 years, without interest, were executed and delivered and the $53,000 bond and mortgage were returned to the makers. Other evidence would also support defendants' contention that the new obligation was substituted for the two prior obligations and that the return of the $53,000 mortgage, in the circumstances, was sufficient to go to a jury on the question of payment: see Citizens Bank of Wind Gap v. Lipschitz, 296 Pa. 291, 294, 296, 145 A. 831.

Judgment affirmed.