January 4, 1954
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.
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.
[ 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 decedent, Peter Poelcher, -- that is to say, whether he had executed the note. The jury returned a verdict for the plaintiff. The court refused defendant's motion for a new trial and defendant now appeals from the judgment entered in plaintiff's favor.
The sole purpose of opening a judgment entered by confession on a warrant of attorney is to let the defendant into any and all defenses he might have asserted had he not been precluded therefrom by the entry of the judgment. The proceedings being wholly de novo, the duty devolves upon the plaintiff to establish his prima facie case in the same manner and to the same extent as if he had begun by an action in assumpsit instead of entering an ex parte judgment. The burden and the mode of proof remain, in respect to both parties, just as they would have been had the judgment not been entered: West v. Irwin, 74 Pa. 258; Collins v. Freas, 77 Pa. 493; Sossong v. Rosar, 112 Pa. 197, 202,
[ 375 Pa. Page 5433]
A. 768, 771, 772; Harris v. Harris, 154 Pa. 501, 26 A. 617; Long v. Morningstar, 212 Pa. 458, 61 A. 1007; Austen v. Marzolf, 307 Pa. 232, 161 A. 72. In the Sossong case, it was said (p. 202, A. pp. 771, 772): "These decisions and the reasonings upon which they are based establish that where a judgment entered upon a warrant of attorney, or even upon a default, is opened generally and without terms, the plaintiff is put to his proof of cause of action precisely as if no judgment had been entered. Consequently any defense which would have been available to the defendant if an action had been brought, instead of a judgment entered upon the instrument in suit, may be set up on the trial; the burden of proof is upon the plaintiff, and he must make out his case subject to the defendant's right to defeat him upon any ground that would have sufficed for that purpose if no judgment had been entered." In the Austen case, a judgment was entered by confession on a note; defendant, alleging that his signature was a forgery and made without consideration, obtained an order opening the judgment. The case then proceeded to trial and the court nonsuited plaintiff on the ground that he had not proved delivery of the note and consideration therefor. This court, however, reversed the court below. After affirming the above quotation from the Sossong case as stating "the true rule," we added (pp. 235, 236, A. p. 73): "If plaintiff is put to proof of his cause of action precisely as if no judgment had been entered, it follows that the burden of proof is no greater than in an ordinary suit upon a promissory note where the defense is forgery... once plaintiff has proved the signature, consideration and delivery may be presumed from the fact that the instrument is under seal... These considerations relate only to the amount and nature of proof sufficient to raise a prima facie case for the jury. They
[ 375 Pa. Page 544]
do not affect the well established rule that, where the judgment has been opened generally, it is competent for defendant to make any legal defense: ... Plaintiff, however, is not required to anticipate a defense and sustain a greater burden of proof than is necessary normally. In other words, a plaintiff who relies upon a sealed instrument is not obliged to prove consideration to take the case to the jury. The seal imports consideration: ... Nevertheless, where the judgment has been opened generally on the ground of forgery, it is competent for defendant to raise the question of consideration, despite the presence of the seal. The jury would then decide the issue."
Applying, then, these principles to the present case it is clear that plaintiff established a prima facie right of recovery by proof of the execution of the one and its presentation in evidence, since the opening of the judgment by confession did not, and could not, change the nature of the instrument in suit. Although our order, as in similar cases, provided that defendant should be let into a defense (presumably that of failure of consideration, that being the sole reason advanced by defendant for opening the judgment) defendant, as already stated, did not, in either her affidavit of defense or answer, plead failure of consideration, but only alleged alterations of the note and that decedent had not executed it. Under Pa. R.C.P. 1030, the defense of failure of consideration is purely an affirmative defense which must be so pleaded, -- a rule which is merely the expression of a long line of decisions holding that the burden to prove failure of consideration is always upon the defendant.*fn* Pa.
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R.C.P. 1032 provides that such defense, if not pleaded, is waived.
On the present appeal, defendant's counsel apparently recognized the effect of the principles and rules thus discussed for neither in the statement of questions involved nor in the argument in his brief is there any contention that the opening of the judgment imposed upon the plaintiff the duty of proving that there was no failure of consideration. Indeed defendant's original claim of failure of consideration has obviously been completely abandoned, for the statement of questions involved (to which the present appeal is therefore limited) presents but a single contention; namely, that the trial judge should not have sustained plaintiff's objections to the introduction into evidence of certain enlarged photostats or "blow-ups" of the note. Defendant's purpose in offering these enlargements was to attempt to show, by increasing the size of the note, some change or variation not visible in the original. They were rejected by the court on the ground that they were not properly verified because the witness who produced them was not the party who photographed them nor was he present when they were made. While it is true that ordinarily a photograph may be admitted in evidence by testimony other than that of the photographer himself if the witness is familiar with the original and thereby able to testify that it is a correct picture of its subject matter (Thompson v. DeLong, 267 Pa. 212, 218, 110 A. 251, 253; Commonwealth v. Luccitti, 295 Pa. 190, 198, 145 A. 85, 89; Adamczuk v. Holloway, 338 Pa. 263, 265, 266, 13 A.2d 4; Commonwealth v. Swartz, 40 Pa. Superior Ct. 370, 374, 375;
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is not included in the list an alteration of the figures which state the sum payable if that sum is also denoted by words in the body of the note. It has therefore been consistently held that an alteration in the figures in the upper left-hand corner of a note is not a material alteration if the words clearly denote the sum payable: Philadelphia National Bank v. Buchman, 314 Pa. 343, 349-351, 171 A. 589, 591, 592; People v. Lewinger, 252 Ill. 332, 96 N.E. 837; Peoples Bank and Trust Co. v. Klughaupt, 13 N.J. Misc. 744, 180 A. 560; Mumford v. Coghlin, 249 Mass. 184, 144 N.E. 283; Morris Plan Co. of New York v. Epstein, 263 N.Y.S. 454. The words in the present note do show the amount payable, namely, "Three thousand three hundred Dollars," and therefore the erasure in the upper left-hand corner did not constitute a material alteration, as the court below properly held.
It appears that in his instructions to the jury the trial judge made a slight error in the calculation of the amount of interest and attorney's commission due, but this error was corrected by the filing of a remittitur ordered by the court.