Everhart v. Fulmer

Opinion by

Trbxleb, J.,

The court below, upon a petition being presented alleging that the name of the subscribing witness to a promissory note was affixed after the execution of the note and without the knowledge and consent of the makers, opened the judgment which had been entered by virtue of a warrant of attorney contained in the note and granted an issue to determine the facts in dispute. The depositions taken show that there is great doubt as to the time when the name of the subscribing witness was affixed and as to whether the name was affixed with the knowledge and consent of the makers.

Mary Whitmer, the petitioner, one of the makers of the note, testified that the signature of the subscribing witness was not on the note when she and her joint obligor, Fulmer, signed it. In this statement she was corroborated by Fulmer. The subscribing witness and the payee of the note contradicted her and alleged that when Fulmer affixed his name to the note he handed the pen to the wife of the payee, and she with the same pen signed as subscribing witness. The note itself upon examination by the court showed that the name of the subscribing witness and that of Fulmer, appeared to have been written with inks differing in color. In the face of this contradictory testimony the court cannot be convicted of error in that, in the exercise of its discretion it granted an issue and referred the determination of the matter to a jury: Jenkintown Nat’l Bank v. Fulmor, 124 Pa. 337, and a long line of cases, the last being Wright v. Linhart, 243 Pa. 221. The adding of the name of a witness to the signature of a paper after its execution without the knowledge or consent of the obligors is a material alteration: Shiffer v. Mosier, 225 Pa. 552; Marshall v. Gougler, 10 S. & R. 164; Henning v. Werkheiser, 8 Pa. 518; Foust v. Renno, 8 Pa. 378.

A careful reading of the testimony submitted leads us' to the conclusion that the court below was justified in granting the issue.

Judgment affirmed.