Guernsey v. Froude , 13 Pa. Super. 405 ( 1900 )

Opinion

by Orlady, J.,

The plaintiff, through a salesman, placed a piano in the home of the defendants under such circumstances as to result in their executing a lease, which provided for its hire and ultimate purchase. Under this lease a judgment for $350 was entered against them, and four days later the defendants presented their petition to the court of common pleas for a rule to open the judgment, etc. After a hearing the rule was made absolute, and under an agreement of counsel an issue was framed, on the trial of which the principal contention was in regard to an alleged parol agreement, contemporaneously made, by which the lease was conditionally delivered to the plaintiff’s agent. After the lease had been formally signed, a controversy arose as to whether the judgment clause therein contemplated a general judgment against the two defendants, or, one that would be a special lien against the piano. The husband and wife testified that it was distinctly understood that if a general judgment could be entered against them on the lease the sale would be declared off by the plaintiff, and that after submitting a copy of the lease to their counsel they were advised that a general judgment could be entered; whereupon, three days afterwards the husband notified the plaintiff that “ they would not keep the piano.” This notice was soon followed by another of like import, and the second by one in writing to the same effect, in which the plaintiff was requested to remove the piano from their house. The plaintiff contended that the delivery of the lease was not hampered with any condition, and claimed that the defendants had subsequently ratified it. The plaintiff’s eighth point (sixth assignment of error) was as follows: “ That whatever conversation was had between Foote and Mr. and 'Mrs. Froude after the signing of the lease by the two defendants with respect to an examination of the paper by some third party, would not be material in the case, and could not affect the plaintiff’s right to recover, if the jury believe that the lease had been signed and delivered to Mr. Foote before such conversation occurred;” and in answering the trial judge correctly said that, “ if the delivery to Mr. Foote was not accompanied by a condition, the point is affirmed.”

A voluntary delivery of a lease is as necessary a part of a transaction as is the affixing of signatures to it, and whether, under all the evidence, it was delivered as the consummation of the contract, or upon the condition asserted by the defendants, was for the jury to decide. This was the turning point of the case, and if the lease were to stand in abeyance until the effect of the judgment clause could be ascertained its delivery depended upon the decision of that question, thereby giving the defendants an opportunity to withdraw from the contract, providing it were found to be as it is now admitted: Reed v. Breeden, 61 Pa. 460; Benedick v. Benedick, 187 Pa. 851.

A more serious question is presented by the ninth assignment of error, which is as - follows: “ The learned court erred in not giving the jury adequate instructions as to the measure-of proof required in cases of this kind, to vary or reform a written instrument.” Among other instructions the court said, “You must decide the case according to the fair weight and preponderance of the testimony, and the burden of proof is upon the defendants in this ease to satisfy you by the fair weight of their testimony that their contention is correct.” The defendants’ case depended largely upon their own testimony, but the appellant contends that this evidence should not be considered as that of two independent witnesses, as it amounted to no more than the testimony of one witness. Formerly it was held that the testimony of husband and wife was equivalent to but that of one witness: Sower v. Weaver, 78 Pa. 443; Bitner v. Boone, 128 Pa. 567; Yost v. Mensch, 141 Pa. 73. While the old rule which prevents husband and wife testifying “ against each other ” is not relaxed by either statute or decision (Rowley v. McHugh, 66 Pa. 269, Pleasanton v. Nutt, 115 Pa. 266, Act of May 23, 1887, P. L. 158, sec. 5c, and Johnson v. Watson, 157 Pa. 454), it is now settled that they can testify in favor of each other if no other objection than the fact of marriage be interposed. The relation of a husband may influence her testimony to a greater or less degree, but her credibility, like that of a father, child, or friend, is for the jury alone: Organ Co. v. McManigal, 8 Pa. Superior Ct. 632. When competent to testify against each other the husband or wife may be called as if on cross-examination by the adverse party: Costello v. Costello, 191 Pa. 379.

All doubt on the subject is answered by the 4th section of the Act of May 23, 1887, P. L. 158, as follows: “. . . . nor any other interest or policy of law, except as is provided in section 5 of this act shall make any person incompetent as a witness.” A married woman is a competent witness, subject to the limitations mentioned in clauses b and c of section 5 of the act, and it would be trifling with legislative intent to construe the act to mean that though she is made competent as a witness, her testimony shall not be considered as such. In this case the testimony of the husband and wife was to be considered by the jury as that of two interested witnesses.

The wife has at last -attained to a separate existence on the witness stand, and her testimony must henceforth be treated as if it came from a person with a mind and will of her own, and not from a mere automaton without will or conscience, and wholly responsive to her husband’s touch: Brenneman v. Rudy, 8 Pa. Dist. Rep. 68. See also Young v. Senft, 153 Pa. 352, and Poundstone v. Jones, 187 Pa. 289.

In the language quoted under the ninth assignment, the court erred in stating the measure of proof necessary to relieve a married woman from the effect of a judgment entered against her. When a married woman seeks to maintain her title to real estate against the assaults of her husband’s creditors, she is required to adduce proof that is “ clear and satisfactory, sufficient to repel all adverse presumption.” “ The evidence must be clear and satisfactory — clear and full proof — clear and unequivocal— it must exclude reasonable suspicion: ” Tripner v. Abrahams, 47 Pa. 220; Earl v. Champion, 65 Pa. 191; Benson v. Maxwell, 105 Pa. 274; Duncan v. Sherman, 121 Pa. 520; Billington v. Sweeting, 172 Pa. 161; Rine v. Hall, 187 Pa. 264. In order to have a judgment against her opened, she is required to furnish the testimony of two witnesses, or of one witness and the equivalent of another: Oberly v. Oberly, 190 Pa. 341. In this case she aims at being entirely relieved from any liability under her judgment in an issue which attacks its original foundation. The measure of proof should not differ in one instance from the other.

“ To instruct the jury that a fact must be established by the ‘ weight of the evidence ’ is not equivalent to saying that it must be established * by clear and satisfactory evidence.’ The latter implies a higher degree of proof than the former: Coyle v. Commonwealth, 100 Pa. 573; Commonwealth v. Gerade, 145 Pa. 289; ” Taylor v. Paul, 6 Pa. Superior Ct. 496. The instruction of the learned trial judge that the “ fair weight and preponderance of the testimony ” was sufficient did not meet the requirements of the decisions, for which reason the judgment must be reversed.

The court undertook to instruct the jury as to the measure and quality of proof required, consequently the plaintiff’s neglect specifically to request the court to do so is not material; error may be assigned if the true rule was not given: Taylor v. Paul, supra. The defendants denied any subsequent ratification of the lease as vigorously as they affirmed its conditional delivery, but with the exception mentioned the case was fairly tried. The ninth assignment of error, so far as it applies to the part of the charge of the court quoted, is sustained. The other assignments are overruled, the judgment is reversed and a venire facias de novo awarded.