Charles D. Kaier Co. v. O'brien , 202 Pa. 153 ( 1902 )

Opinion by

Mr. Justice Fell,

Judgment by confession was entered on a bond against James O’Brien as principal and James Hullihan and John Hullihan as sureties. After the death of the sureties rules to open the judgment were granted on the petitions of the representatives of their estates. The ground of the applications was that the sureties had not signed the bond, and the issue raised was distinctly that of forgery. The bond was not witnessed and no one saw either James or John Hullihan sign it, and no one testified that their signatures were genuine. O’Brien testified that he told John Hullihan that he was required to give a bond with sureties, but did not ask him to sign the bond; that he was told by John to leave the bond with him, and he would see whether he could do anything in the matter; that he afterward called at John’s saloon, saw the bond on a shelf back of the bar, and took it away with him, and on examining it on his way home found the names of James and John Hullihan signed to it. He did not know their signatures and had not spoken to J ames about the bond. A number of witnesses testified that both signatures were forged, and all the members of John’s family testified that the bond was not signed by anyone by his direction.

From this testimony the learned judge found that James’s signature was genuine and that John’s was not, but that John had directed some one to sign the bond for him. The finding as to James was based on a comparison made by the judge of the signature on the bond with an admitted signature, and on it is based the finding that John authorized some one to sign the bond for him. The substance of the reasons given as to John’s authorizing some one to sign for him is that as O’Brien had not spoken to James about signing the bond and had left it at John’s saloon in order to obtain sureties, and afterwards found it with both names signed to it, John must have known that James had signed it, and he must have authorized some one to sign for him. In other words, that as the bond was signed by James and found in John’s possession, there must have been a conference between them, and that as one signature was genuine, the other was authorized.

The reasons stated are not satisfactory but it is needless to consider them. The radical error in the finding as to the signature of John is that the burden of proof was shifted. The learned judge says in the opinion filed: “ Neither do we think the evidence on the question, whether or not, John Hullihan authorized anyone to sign for him is sufficient to establish the fact that he did not so authorize some one. This testimony is of course negative in character, but to our mind it proves nothing.” The administrator was under no duty to show that the signature was not authorized. The burden was on the other side. Having shown that the signature was not that of John, the defense was complete in the absence of clear affirmative proof that some one duly authorized had signed the bond for him. Nor can we sustain the finding that the signature of James was genuine. As before said, no one saw him sign, no one knew that he had ever been asked to sign, and no one testified that the signature was his. All the members of his family testified that it was a forgery. This clear and positive testimony, to which greater weight should bo given because of the fact that John’s signature to the bond was not in his handwriting, is wholly disregarded by the learned judge because of the resemblance which he finds between the signature of James on the bond and his genuine signature on another bond which he signed as a witness. The testimony is so overwhelming and so fully corroborated by the circumstances that the case should have been sent to the jury.

An application to open a judgment entered on a warrant of attorney is addressed to the equitable powers of the court and on appeal the question is whether there has been a rightful exercise of discretion. The measure of proof required to send a case to a jury cannot be defined by rule, but it may be said that while a mere conflict of evidence is not generally sufficient, the defendant should be allowed a trial where he has shown by a preponderance of evidence, sufficient to sustain a verdict in his favor, that he has a just defense: Earley’s Appeal, 90 Pa. 321; Jenkintown Nat. Bank v. Fulmor, 124 Pa. 337. In Mitchell on Motions and Rules, p. 78, it is said: “A defendant who has only enough evidence to produce a fair conflict, ought not to prevail against a plaintiff, who has also evidence amounting to a fair conflict plus the written instrument. . . . The true rule, to which I believe the courts must ultimately come, is that the defendant should show a preponderance of evidence that a jury ought and probably will find in his favor.” Here the writing had no weight whatever as its genuineness was in issue. There was clear affirmative and uncontradicted testimony that the signature was a forgery, and against it an inference drawn by the judge, who was not an expert in the comparison of handwritings, founded on the resemblance of the disputed signature to an admittedly genuine one.

At the argument it was suggested that no appeal had been taken by the representatives of the estate of James Hullihan. Both defendants were originally represented by the same counsel, and the rules taken related to the same judgment, and were heard and considered together and disposed of by the court by the order from which an appeal has been taken. It was no doubt the understanding that the appeal taken from this order covered both cases, and we will so regard it. The order of the court discharging the rules to open the judgment and to let the defendants into a defense is reversed and set aside, and the rules are now made absolute.