Appeal, No. 208, March T., 1952, from judgment of Court of Common Pleas of Somerset County, Commonwealth Docket 1949, No. 793, in case of J. Clyde Wagner v. Somerset County Memorial Park, Inc. Judgment reversed.
Leland W. Walker, for appellant.
Wilbert H. Beachy, Jr., for appellee.
Before Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff on August 6, 1949, entered judgment on a demand judgment note of the defendant dated October 10, 1948; in the amount of $3600. The note was executed by the President of the defendant and by its Secretary, A. C. Waterman, with the corporate seal affixed thereto. On March 5, 1951, the defendant corporation through its trustees petitioned the Court of Common Pleas to open the judgment. The judgment was opened; an action of assumpsit was brought on the note and resulted in a compulsory non-suit. The motion to take off the non-suit was granted and the case was tried before a jury, which rendered a verdict in favor of the defendant corporation. Plaintiff's motion for a new trial and his motion for judgment non obstante veredicto were dismissed; plaintiff appealed from the judgment entered on the verdict but argues here only his motion for judgment n.o.v.
Plaintiff became Secretary of the defendant corporation in July 1944, and continued as such until September 10, 1947. Defendant owned and sold cemetery lots for profit. Plaintiff was in charge of outside work and was ignorant of the mechanical operation of the corporation. Occasionally he helped the bookkeeper make some entries in the corporate books. During the period in question H. L. Fisher was President, majority stockholder and actual head of defendant. The corporation was virtually a one-man corporation.
Plaintiff offered in evidence the above mentioned note of the corporation, executed by its President and Secretary, in the amount of $3600. and also defendant's "Cash Receipts and Disbursement Ledger" which defendant admitted showed that since 1944 plaintiff had advanced or loaned moneys to the defendant totaling $3560. Defendant further admitted that $3130. of these loans was immediately deposited in the defendant's bank account ; and subsequently admitted that all payments made by Wagner went into defendant's bank account.
The Act of May 5, 1933, Art. III, Sec. 305, P.L. 364, 15 PS 2852-305, provides, (with certain qualifications not here relevant) that any note when signed by the President and Secretary of a corporation shall be held to have been properly executed for and in behalf of the corporation. It is clear, therefore, that plaintiff made out a very strong prima facie case.
Defendant in its pleadings based its defense solely upon fraud -- alleging that plaintiff loaned the moneys represented by the note in suit to H. L. Fisher individually instead of to the defendant corporation, and consequently the execution and delivery of the judgment note of the defendant in ...