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POELCHER v. ZINK (01/04/54)

January 4, 1954

POELCHER
v.
ZINK, APPELLANT



Appeal, No. 141, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1948, No. 172, in case of Margaret Poelcher v. Pauline Zink, Exrx., Estate of Peter Poelcher, deceased. Judgment affirmed.

COUNSEL

Waldo P. Breeden, with him Harry E. Richter, for appellant.

Hubert I. Teitelbaum, with him Goldstock, Schwartz, Teitelbaum & Schwartz, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 375 Pa. Page 540]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

While plaintiff's claim in form is directed against the decedent's estate, the controversy from a practical standpoint is really one between Margaret Poelcher, a daughter-in-law of the decedent, and Pauline Zink, one of his daughters. Peter Poelcher, the decedent, had eight children who are still living, but in his will he devised one-third of his entire estate to his wife, and, in the event of her prior decease, to his daughter, Pauline, the present defendant; and the remaining two-thirds also to Pauline. Therefore plaintiff's recovery in this action will be against the property which defendant

[ 375 Pa. Page 541]

    obtained from the decedent, of whose will she is also the executrix.

Plaintiff's claim is on a note under seal for $3,300.00, dated September 22, 1941, and containing a power of attorney to confess judgment. The note bears Peter Poelcher's signature. Judgment on the note was entered in 1947 for the principal amount together with interest and attorney's commission for collection as therein provided. Peter Poelcher lived for seven months after the entry of the judgment, but eleven days after his death Pauline Zink, his executrix, alleging that no consideration had been received by him, obtained a rule to show cause why the judgment should not be opened and she be permitted to enter into a defense. In support of her rule she, and witnesses on her behalf, gave depositions designed to establish failure of consideration, for, while a seal precludes a defense of want of consideration, it does not bar proof of failure of consideration. In opposition to the opening of the judgment plaintiff produced counter-depositions to show that there had not been any such failure but that consideration had in fact been given. The court below discharged the rule, but we reversed its order (Poelcher v. Poelcher, 366 Pa. 3, 75 A.2d 656) and remanded the record with direction that the judgment be opened and the defendant let into a defense.

After the case had thus been returned to the court below defendant filed an affidavit of defense to plaintiff's statement which had accompanied the confession, and in it she asserted that Peter Poelcher had not executed the note as alleged but that alterations had been made to it which rendered it void; other than a claim that the note was barred by the statute of limitations and a general allegation that the decedent did not owe the sum named, no other defense was set forth in the pleading. Subsequently she filed an answer in which

[ 375 Pa. Page 542]

    she likewise asserted that decedent had not executed the note and that it had been altered and was thereby invalidated, but in this pleading also there was no allegation of failure of consideration. At the trial plaintiff offered evidence to prove decedent's signature to the note, presented the note under seal in evidence, and rested. The court refused a motion for a compulsory non-suit and defendant then offered testimony concerning the relations between the decedent and his children which the court subsequently ruled out as irrelevant (as it obviously was), and also testimony to establish alleged alterations of the note. The court charged the jury that there was not sufficient evidence to warrant them in finding that there was any material alteration of the note that would affect its validity, and that therefore the only question for their consideration under the pleadings and the evidence was whether the signature on the note was that of the ...


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