Paige v. Paige , 53 Pa. Super. 311 ( 1913 )

Opinion by

Henderson, J.,

The defendant relied on a receipt for his acquittance of liability to the plaintiff. It purported to be a receipt signed by Mary A. Wilmarth for the entire debt which was the basis of the action and specifically identified the certificate of indebtedness on which the plaintiff claimed. Mrs. Wilmarth being dead the defendant was compelled to resort to evidence of the genuineness of her signature, and the testimony on this point justified the admission of the receipt as evidence. If the receipt was genuine it shifted the burden of proof, and to support a recovery the plaintiff was bound to present evidence which would take it out of his way. The document was not dated, but if signed by the decedent was sufficient to relieve the defendant from his liability unless it could be made to appear that it was obtained by fraud or was executed through accident or mistake or by means of some imposition or other circumstance sufficient to render it invalid. It is self-explanatory; it needs no witness to give it application to the indebtedness which the plaintiff alleges to be still due and is not to be got rid of by mere suspicion. It is the creditor’s own admission in writing that the debt is discharged, and the jury if satisfied of its genuineness under the evidence would not be at liberty to reject it except for what were described in Harris v. Hay, 111 Pa. 562, and in Rhoads’s Estate, 189 Pa. 460, as “weighty reasons.” The evidence offered to impeach the receipt was the deposit books of the decedent which contained no account of the deposit of the sum of money apparently covered by the receipt; testimony that Mrs. Wilmarth had a small personal estate and that she was a careful and methodical person and that the defendant had made the other payments on the same indebtedness by check but that no check was produced corresponding with the receipt. It was not incumbent on the defendant, however, to show that he had made actual payment. Mrs. Wilmarth might have forgiven him a part or the whole of the indebtedness if she were so disposed and the receipt might therefore be evidence of a gift as well as of a payment. Whether the debt was paid or remitted if the creditor were disposed to discharge the debtor from further liability on account of the obligation she had a legal right so to do. When the learned judge charged, therefore, as set forth in the fourth assignment that if the jury believed that the defendant paid Mrs. Wilmarth the balance of $700 the verdict should be for the defendant, but that if on the other hand they believed that he never paid the balance, then their verdict should be for the plaintiff, a burden was put on the defendant which the evidence did not authorize. The defendant was entitled to the instruction that if the jury believed that Mrs. Wilmarth signed the receipt the verdict should be for the defendant inasmuch as the evidence offered by the plaintiff against the receipt was not sufficient to overcome its effect. This evidence when given its utmost force created a suspicion only and fell far short of the testimony which was said in Rhoads’s Estate, 189 Pa. 460, to be necessary to overcome a receipt under such circumstances. We are not convinced that binding instructions should have been given on all of the evidence for the reason that the defendant relied on the testimony of two witnesses as to the signature to the receipt. The effect of that evidence was for the determination of the jury. They saw the witnesses and were informed as to the extent of their knowledge. They were therefore the tribunal to pass on the fact. The Supreme Court did decide on the sufficiency of all of the evidence in Rhoads’s Estate but that was a controversy in the orphans’ court where the duty of disposing of the facts devolved on the judge. We feel obliged, therefore, to sustain the fourth and fifth assignments.

The judgment is reversed with a venire facias de novo.