D. L. Gillespie & Co. v. Rogers , 184 Pa. 488 ( 1898 )

Opinion by

Mb. Justice McCollum,

This was an action of assumpsit on a promissory note for $1,800. It was brought, and a statement of claim accompanied by a copy of the note was filed, on April 13,1896. On the 29th of the same month the defendant filed an affidavit of defense in which he averred that there was no consideration whatever for the note either to him, or to Doherty Bros., “ or in the execution or indorsement and delivery of it to the plaintiffs ” for whose accommodation he alleged it was made. On May 21, 1896, the defendant withdrew his affidavit of defense and confessed judgment for $1,814.10, that being the amount of the note with interest. Fifteen months and fourteen days after judgment w'as entered in the suit as above stated, he presented a petition to the court, in which he claimed that the note was a forgery, and on which a rule was granted to show cause why the judgment should not be opened. The court, upon due consideration of the petition and the affidavit filed in aid of it, discharged the rule, and from the order discharging it this appeal was taken.

The petition was manifestly based on the affidavit of Henderson that the defendant was accustomed on the solicitation of Doherty Bros, to sign notes in blank for their accommodation, leaving it to them to fill in the amounts as they might have occasion to use the notes. It was further stated in his affidavit that it was understood between the defendant and Doherty Bros, that the amounts so filled in should not exceed three hundred dollars in any case, and that they were accustomed to disregard this understanding and to write into the notes such amounts as best accommodated them. From this course of dealing the affiant appears to have inferred that the defendant never made and delivered the note in suit to Doherty Bros. He does not allege that he has ever seen the note, or state other •grounds than those above mentioned for his “ best knowledge ■and belief.” There is no denial in the defendant’s petition or in Henderson’s affidavit of the genuineness of the defendant’s ■signature to the note in question, nor is “there an averment in ■the defendant’s petition of an agreement between him and Doherty Bros, such as is alleged in Henderson’s affidavit. It •could hardly be expected that the defendant would make such an averment in the face of the fact that he practically admitted in his affidavit of April 29, that he made the note for the accommodation of the plaintiffs, and of the further fact that he set up want of consideration as a defense to it.

It is very clear that if it was agreed between the defendant and Doherty Bros, that they should not write into any note he signed in blank for their accommodation an amount to exceed three hundred dollars, he knew when he appeared to take defense to the note in suit that they had violated the agreement. If, however, no agreement defining or limiting the amount to be filled in was made, it was for them to determine it. Assuming that Doherty Bros, wrote into the note in question a larger amount than they were authorized by the defendant to write into it, it does not follow that a purchaser of the note for value, before maturity and without notice of the course of dealing between the maker and the payees, would be prejudiced by their action. It is not denied in the defendant’s petition or in the Henderson affidavit that the plaintiffs were such purchasers.

The petition and the affidavit on which it was founded were vague and unsatisfactory. They were made on the same day, and the former was suggested by the latter. This sufficiently appears in the defendant’s affidavit of September 8, in which he states that the information on which he acted was received on the day they were written. No evidence was offered to sustain them, and they were not sufficient upon their face to warrant the opening of the judgment. Aside from their own insufficiency, there were other matters in the way of the application to open it, to wit: the defendant’s affidavit of defense filed on April 29 and withdrawn by him on May 21, his confession of judgment on the day he withdrew the affidavit, and his acquiescence in the judgment for fifteen months. To these obstacles in the way of his application may be added the further and obvious one that; when he filed his affidavit of defense his knowledge of his transactions with Doherty Bros, was substantially the same as now.

The assignment is overruled and the order discharging the rule to open the judgment is affirmed.