Faux v. Fitler , 232 Pa. 33 ( 1911 )

Opinion by

Mr. Justice Moschzisker,

The plaintiff sued the defendant to recover on three promissory notes, all drawn in regular form, and each of them given by the latter for money received from the former.

When this case was here before (223 Pa. 568) on the question of the sufficiency of the affidavits of defense, we said that it would be “the duty of the trial judge to submit. for the consideration of the jury any meritorious defense the defendant may present.” The question as to whether or not the defendant would be able to sustain his defense by the proper measure of proof was not then before us: Gandy v. Weckerly, 220 Pa. 285. It was for the trial judge to pass upon the question of the sufficiency of the evidence when the defendant came to present his defense.

The only real evidence produced by the defendant to overcome the written promissory notes was his own testimony, and we agree with the court below that this was entirely insufficient for the purpose: Phillips v. Meily, 106 Pa. 536; Fuller v. Law, 207 Pa. 101. While the defendant attempted to escape liability upon the plea that the understanding was that the notes were mere memoranda between him and the plaintiff of a joint-stock speculation, and that in the event of a fáilure to come out whole on the transaction, he was not to be called upon to pay them, yet he nowhere in his testimony states that he ever said to the plaintiff, or that the plaintiff said to him, that the notes were not to be paid according to the terms of the written contracts. It is a very usual thing when one friend lends money to another and requests a note as an acknowledgment, to remark as a matter of politeness that the written promise to pay is merely taken as a memorandum of the transaction to cover the contingency of death. The testimony of the defendant concerning the making of the notes in suit would be entirely consistent with such an incident. It may be that Mr. Fitler thought and understood that he would not be called upon to pay if the stock transactions were not a success, but the evidence falls far short of justifying a finding that any such contract existed between the parties. The first, second and fifth assignments of error are overruled.

The third and fourth assignments are overruled for the reason that the defendant’s testimony shows that the stock dealings in question were not wagering or gambling transactions.

The judgment of the court below is affirmed.