Kaufmann v. Rowan

Opinion by

Mb. Justice Mitchell,

On the trial of the scire facias on the mortgage Mrs. Rowan, the appellant, was called and asked what her husband had said to her the evening and again the morning before she went to the office where she signed the mortgage. The court sustained an objection that it was irrelevant without evidence of notice to the mortgagee before he took the mortgage, and as there was no such evidence, nor offer to produce it, the ruling was clearly right.

On the main ground of defense, coercion, the evidence wholly failed. The property of Mrs. Rowan was bound by a mortgage to Adler & Co. to secure a debt of her husband to them, and to indemnify them as sureties for certain rent due and to become due by the husband. This debt was becoming urgent, and an arrangement was made to pay it off and discharge it through the aid of a new mortgage to plaintiffs. The parties met to carry out this arrangement, there being present one of the plaintiffs with his counsel, and both the defendants with their counsel. A discussion ensued, lasting several hours, during which it is now alleged that Mrs. Rowan was coerced by her husband and Kaufmann into signing the mortgage. But as to this, as already said, the evidence wholly fails. The only evidence bearing even slightly on coercion by the husband is that once when his wife and Kaufmann had got into a very heated discussion over the water rent, and as she says Kaufmann began to swear, the husband leaned over the table and told her to hush and not to talk to Kaufmann. On cross-examination she was asked the direct question whether at that time she was afraid of her husband and her answer “ don’t you think I would be a child if I was afraid of him ? ” is the best commentary on the whole defense. It is not worth while to review the testimony. It shows that she knew all about the transaction and took an active and positive part in it; that she did object to including the water rent, and dickered stoutly for better terms, but finding Kaufmann firm yielded and signed the mortgage after it had been gone over and discussed item by item in the presence and with the advice of her counsel.

The appellant further claims that she was not informed of the contents of the paper by the notary who took her acknowledgment. In the face of the facts as to the previous discussion and the presence of her counsel at the time, this would be unworthy of any credit, but as the notary testified to asking her if the contents were known to her and if she signed of her own will and accord, the court was right in not submitting the mat ter to the jury: Oppenheimer v. Right, 106 Pa. 569; Lewars v. Weaver, 121 Pa. 268.

The last point urged by appellant is that her property was in the position of surety for her husband’s debt, and that by a subsequent agreement in writing plaintiffs extended the time for payment of the husband’s debt, and thereby discharged her mortgage. But even conceding the validity of this point, an examination of the contract does not sustain it. Under the lease to Rowan he was bound to furnish good bail each January for the year beginning the following April. In January, 1895, one Friday became such bail for one half the rent for the ensuing year, and also for one half the payment of an additional sum of $500 each month for six months, to be applied on the debt secured by the bond and mortgage in suit. Upon such payments being made the plaintiffs agreed to extend the time of maturity of the mortgage for one year, but expressly stipulated that in no way should their rights for the enforcement of the mortgage be relinquished or prejudiced. This agreement was in plain relief of the surety. Any payments made under it would go to lessen the amount due on the mortgage, and the agreement to extend the time of maturity was conditional on such payments being made. None of them was made and the rights of the parties remained unchanged. A surety can only be held to the contract strictly as he entered into it, and many cases have enforced this principle with such attenuated astuteness as to give rise to the popular impression that becoming surety is a mere matter of form, involving no responsibility that cannot be wriggled out of. But there is a substantial principle as the basis of the rule, and cases like the present show that there may be excuses too flimsy even to exonerate a surety.

Judgment affirmed.