English v. Hager , 119 Pa. 533 ( 1888 )

Opinion,

Mr. Justice Paxson :

This was an appeal by the plaintiff from an order of the court below opening a judgment which he held against Jacob Hager. The plaintiff kept a country store; the defendant was a farmer, and the judgment note in question was given in settlement of their mutual accounts.

After the judgment was opened, the case went to trial, and the jury found a verdict in favor of the defendant. The plaintiff then appealed from the order opening the judgment and also took his writ of error to the jury trial. He assigned for error, first, the opening of the judgment, and second, submitting the case to the jury.

This is in harmony with Citizens’ B. & L. Ass. v. Hoagland, 87 Pa. 326, where it was held that when a judgment is opened under the act of April 4, 1877, the plaintiff is not entitled to an appeal until the case has been heard and the judgment entered thereupon, setting it aside or lessening its amount. In other words, the order to open is not a final judgment.

The plaintiff is now entitled to be heard upon the preliminary question of the right of the defendant to have the judgment opened. If it was error to open it upon the facts as they stood when the order was made, it was error to submit the case to the jury, and the trial goes for nothing.

The proper rule in such cases will be found in Knarr v. Elgren, 19 W. N. 531, where it was said by our brother Tbttnkey : “ The judgment in this case should not have been opened, nor the evidence submitted to the jury. Until overcome by testimony, that if believed ought to move a chancellor to decree that the writing is void, or should be reformed because of forgery, fraud, or mistake, it must be suffered to stand, though the parties thereto so testify that, under the circumstances, it is difficult to avoid belief that one or the other has committed perjury.”

A careful examination of the depositions has led us to the conclusion that it was error to open this judgment. Confining ourselves to what occurred at the time, we have the testimony of the plaintiff and his daughter that the judgment was given in settlement of an amount then due the plaintiff from the defendant as the result of their mutual dealings. The plaintiff says : “When Hager signed the note on January 24, 1885, there was no dispute between us about receipts, except about this buckwheat flour, which I allowed him credit for in order to have a settlement. There was no other conditions upon which the note was signed.” The plaintiff is corroborated by his daughter, who was present and drew up the note in the presence of the parties. The defendant testified: “ I went up to Jersey Shore; Mr. English was there in the store sitting by the stove. I says to Mr. English, we can’t settle, for I lost my 1879 receipts. Then we got up and went around to his desk, on this lower side, then he, Mr. English, says, you can sign this note then, he says that will keep it open until you find your receipts. Then I signed the note. When I found the receipts I was to come up and then we was to settle the note.” There was a great deal of other testimony by defendant and his witnesses as to other matters both before and after the execution of the note. The greater part of it was irrelevant, and referred to transactions about which there was no dispute or which had been embraced in the settlement. Taken together, it was not sufficient to overcome the prima facie evidence furnished by the note itself, supported as it was by the testimony of the plaintiff and his daughter. There was nothing in the case to justify a chancellor in finding that there was either fraud, accident, or mistake in procuring the judgment note, and hence there was nothing by which it could be reformed or set aside.

Upon the question of the reformation of written instruments this court has given no uncertain deliverances. In Phillips v. Meily, 106 Pa. 536, it was said: “ It is only where a chancellor would reform the instrument that parol evidence is admissible to contradict it. It is true, under our practice in Pennsylvania, it is accomplished through common law forms. But the fact remains that the defence set up is purely equitable, and the judge ought not to submit the case to the jury unless the evidence is such that he would feel himself bound as a chancellor to reform the instrument. With our modification of the English rule, now too firmly embedded in our system to be disturbed, and our act of assembly which makes every defendant a competent witness, the principle above stated is about all there is left to preserve the sanctity and force of an instrument of writing, whether that instrument be a deed, which is the evidence of a man’s title to his home, or an obligation for the payment of money.” There was nothing new in this. It was but a repetition of what had been frequently said before and repeatedly since. The same principle will be found declared in Nicholls v. McDonald, 101 Pa. 514; Smith v. Insurance Co., 103 Pa. 177; North and West B. R. Co. v. Swank, 105 Pa. 555; Cummins v. Hurlbutt, 92 Pa. 165; Morton v. Weaver, 99 Pa. 47; Jackson v. Payne, 114 Pa. 67.

Especially are we not disposed to permit written instruments to be brushed aside upon insufficient evidence, where such instrument is the result of a settlement between the parties. Where it has been procured by fraud, or there has been an accident or mistake in its creation, a chancellor will always relieve. Yet he will only do so when the evidence of the fraud, accident, or mistake is clear, precise, and indubitable. We have said this so often that it ought not to be necessary to repeat it.

The order of. the court below opening the judgment is reversed at the costs of the appellee ; and the judgment is reinstated with full force and effect.

ENGLISH V. HAGER.

We held in the appeal of Amzi H. English that it was error to open the judgment. It follows that it was error to submit the case to the jury. It is not necessary to repeat what was there said.

Judgment reversed.