Gardner's Appeal , 4 Sadler 251 ( 1886 )

Opinion by

Mr. Justice Paxson:

This was an appeal from the refusal of the court below to-open a judgment given by the appellant to Conrad Eicholtz, his father-in-law, for the sum of $500. The appellant admits having received the amount, $500, from Eicholtz some months prior to the date of the judgment, but alleges that the money was either a gift to him, appellant, or a compensation for aidingEicholtz in selling some real estate, or an advancement toEicholtz’s daughter, the wife of the appellant, for which he was-, to pay interest at the rate of 3 per cent during Eicholtz’s life. It appears that the latter had, some time prior to this transaction, distributed the greater portion of his estate among his-children, with the understanding that they were to pay interest therefor during his life at the rate of 3 per cent.

It was not alleged, and there was certainly no evidence to-show, that there was either fraud, accident, or mistake in the making of the note in question. Nor was there anything that occurred on its execution which would indicate that the plaintiff below was using the note fraudulently and for a different purpose from that for which it was given. The following is appellant’s own statement of what occurred at the giving of the note :

“In February, 1880, he (plaintiff) came up to my house. I was standing on the porch, and the minute he made the first step upon the porch, he says: ‘Nick, Mother (meaning his wife) sent me up. You have to give a note for these $500 (meaning those $500 he gave me in Allegheny). The boys are not satisfied ; they won’t pay me anything, they say you got the money and are not paying anything — “Why should we pay anything ?” ’ To my recollection I didn’t make any reply. I went and wrote him a note, which is the note in controversy in this proceeding, as I would to any stranger. I gave him the note, and I don’t think there was anything said, to my recollection; at least I can’t recollect anything after I gave him the note. Mr. Eicholtz by ‘the boys’ meant his sons. He said that he had intended to make these boys pay 3 per cent of the value of the farms that he had given them.”

The plaintiff, Avhen examined, denied that there was any agreement that this note was not to be paid in accordance AAdth the terms.

This is all that occurred at the execution and delivery of this note. The sworn declarations made by plaintiff subsequently are not sufficient to override the testimony of the plaintiff, and the prima facies furnished by the note itself. The declarations of plaintiff’s wife were not competent for any purpose.

The case is absolutely bare of anything to show fraud, accident, or mistake, or a fraudulent use of the instrument, different from that declared by the parties to be its purpose, at the time of its execution. Nor do we attach much importance to the alleged want of consideration.

The appellant obtained the plaintiff’s money; that is sure; that he gaA’e his note for it is equally oertain. And there Avas no word said by the plaintiff when he demanded tire note of appellant to indicate that the latter was not to pay it according to its terms. Nor is the appellant’s story clear, as to the matter of this receipt of the $500. He ought to have knoAvn whether it was given to him for services rendered, as a gift, or as an advancement to his wife. It could not have been for any of those.

That the book account could not be set off against this judgment is settled by Beaty v. Bordwell, 91 Pa. 438.

Tbe decree is affirmed and the appeal dismissed, at the costs of appellant.