Walsh v. Ashford

Opinion by

Beaveb, J.,

The rule that “ Au application to open a judgment is addressed to the sound discretion of the court and, on appeal from a refusal to open, the question to be decided is whether that discretion has been properly exercised,” has been so clearly stated, so fully settled and so generally enforced bjr both our appellate courts that it seems scarcely necessary to restate it now: Mullet v. Hensel, 7 Pa. Superior Ct. 524. Is the case under consideration au exception to the rule; or, in other words, was the discretion of the court improperly exercised? The application is based upon alleged fraud in procuring the note with warrant of attorney to confess judgment and the payment in full after its execution.

As to the question of fraud there is no evidence worthy of consideration. The defendant admitted his signature to the note and testified that one of the plaintiffs had called him into the store where the other had the paper on the counter, which lie asked him to sign as a favor; that he signed it, without objection, but says: “ I did not know what I was signing; I bought a team of horses and wagon from him; he brought another wagon but I did not want it and told him to take it away, but he left it there.” Pie says also: “ After I signed the note I said, ‘Is that going to do me any harm?’ and he said it would not do me any harm; that I had any amount of time to pay it. I was to pay for the horses in either stone or money— any way that I could pay for them.” There is no suggestion of fraud here, much less the clear and precise testimony upon which it can be predicated.

As to the question of payment, the testimony is somewhat contradictory, the defendant alleging that the price of stone and sand delivered by him to sundry persons, upon the order of the plaintiffs, and certain amounts of money were to be credited upon the note. The plaintiffs, however, allege and prove that all of these payments were credited upon the store account for supplies furnished and quarry expenses advanced by them and that, independently of the note, the defendant is indebted to them on general account. The testimony of the defendant is very indefinite, whilst that of the plaintiffs is based upon accounts carefully kept by them. There is no allegation as to want of consideration for the note, and it would seem at first sight as if the price of the horses and wagons alleged to be the consideration therefor was less than the full amount, but a careful examination of the testimony reveals the fact that there was included in the note also the price of certain quarry fixtures which, with that of the horses and wagons, constituted the full consideration therefor.

The examination which we have made indicates that the court below fully considered the case in all of its details and that its discretion was wisely exercised in discharging the rule to show cause.

Judgment affirmed.