Glessner v. Patterson , 164 Pa. 224 ( 1894 )

Opinion by

Mb,. Justice Fell,

The plaintiff’s claim was against the estate of a decedent for money loaned at different times extending over a period of five years, for which she had no written obligation, and for the greater part of Avhich it was conceded that none had ever been given. These alleged loans amounted to over $12,000. The first loan of $5,000 it was claimed had been made in 1885, and the others at different times betAveen then and 1890. It was averred that a judgment note had been given for the loan of $5,000, and that it had been surrendered to the decedent in 1890 in order that a new note might be made by him for the whole amount that he then owed the plaintiff and judgment entered thereon in her favor, and that he had failed to do this as agreed.

The testimony in support of this claim was directed to show admissions and declarations made by the decedent, and to establish as a fact that the plaintiff had had at one time in her possession $25,000 in money, and at another a judgment note for $5,000, made in her favor by the decedent.

The defence was that the whole claim was fraudulent, that the plaintiff had loaned no money to the decedent, and had had none to loan : and that any appearance of business transactions between them had been a mere pretence to conceal their true relation. While it was not possible directly to contradict many of the plaintiff’s witnesses as to alleged conversations and occurrences, as they were the only surviving persons who were present at the time, the defence attempted to show by cross-examination and by. the proof of independent facts that the plaintiff was without means, and had never owned the money said to have been loaned ; that she and her family had for years been supported by the decedent, who had given her the only property she ever possessed, and with whom her relations had been meretricious.

Several distinct offers were made to show that during the whole period covering the alleged loans the plaintiff was without means or property except such as she received from' the decedent; that neither her bank account nor his showed the possession by her or receipt by him of any such sums of money as she claimed to have loaned; that he purchased provisions' and clothing and had them secretly sent to her house, which he visited at all hours of day and night, and entered without summoning any one, opening the door himself and passing upstairs to her bedroom. Testimony was offered not onty of a general course of conduct, but of specific acts tending to establish the fact of illicit intimacy. This testimony was excluded, as was the further offer of the defendants to show that the statement made by the plaintiff of the manner in which the money had been paid by her, and the use to which it had been put by the decedent, was incorrect.

What was shown was sufficient to cast suspicion upon the transaction, and the question of fraud was involved in the issue on trial. The rule that great latitude should be given in investigating questions of fraud is elementary: B. & O. R. R. Co. v. Hoge, 34 Pa. 214. It was said in Reinhard v. Keenbartz, 6 Watts, 93: “Upon the trial of an issue involving questions of fraud, great liberality should be allowed in the admission of evidence, that the jury may be able to determine from all the circumstances whether the transaction was fraudulent or not.” In Stauffer v. Young, 39 Pa. 455, the reason of the rule was fully and clearly stated: “ The meaning of the maxim that great liberality of evidence is to be allowed in the trial of questions of fraud is that every circumstance in the condition and relation of the parties, and every act and declaration of the person charged with the fraud, shall be competent evidence, if in the opinion of the judicial mind it bears such a relation to the transaction under investigation as in its nature is calculated to persuade the jury that the allegation of fraud is or is not well founded.”

The claim presented by the plaintiff was not within the rules which govern business transactions. It was exceptional, if not extraordinary. An amount of money large in view of the circumstances of either of the parties was said to have been loaned by a person of limited means and possessing no visible property to one who apparently had no occasion to borrow. No writing attested the transaction, and for the greater part of the loan it was not claimed that any had ever been given. The only written obligation that was said to have been executed had been surrendered six months before the death of the decedent under a promise by him to execute a new one, and this promise remained at his death unfulfilled, without demand or protest by the plaintiff. The plaintiff’s testimony itself suggested the necessity of the most searching inquiry.

The action was to recover for money loaned, and the narrow question was whether the relation of creditor and debtor had existed. Every act and declaration of the plaintiff, and every fact and circumstance which would throw light upon this question and disclose the true relation of the parties, was important in ascertaining the truth. The possession of a large sum of money by the plaintiff gave color to the statement that a loan had been made, by showing that she had the means with which to make it, and for this purpose testimony as to it was offered ; but to affect the credibility of her witness as well as to rebut the presumption of her ownership of the monej'’, if it had. been in her possession, it was competent to show that she was without property, and all that she said at that time or at any other time in relation to the source from which the money came it was the right of the defendant to elicit. The same rule applies to the declarations made by her when she exhibited the judgment note, to her statements of the manner in which the money was paid to the decedent and of the uses to which he put it, and to any demand made by her of his administrators inconsistent with the claim presented at the trial.

The plaintiff’s case rested almost wholly upon proof of acts to which she was a party, and of declarations of the decedent made for the most part in her presence and elicited by her suggestions and inquiries. These proofs were not to be exhibited at arm’s length, but were open to the most rigid and searching examination. As the plaintiff participated in them, all she said at the time, or before or after, which explained or qualified them, or tended to show the falsity of her claim, was evidence for the defence.

The reasons stated apply to the thirteenth, fifteenth, sixteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-seventh and twenty-eighth assignments of error, which are sustained.

The judgment is reversed and a venire facias de novo awarded.