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WILLIAM F. OTTO v. JAMES E. POWERS (01/14/55)

January 14, 1955

WILLIAM F. OTTO, III, APPELLANT,
v.
JAMES E. POWERS, KATHRYN R. POWERS



Appeal, No. 290, Oct. T., 1954, from judgment of Court of Common Pleas No. 5 of Philadelphia County, June T., 1952, No. 5668, in case of William F. Otto, III, v. James E. Powers and Kathryn R. Powers. Judgment affirmed.

COUNSEL

H. Durston Saylor, II, with him George V. Strong and Strong, Sullivan, Saylor & Ferguson, for appellant.

Theodore R. Mann, with him Maximillian J. Klinger, for appellees.

Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Woodside

[ 177 Pa. Super. Page 254]

OPINION BY WOODSIDE, J.,

This is an appeal from the refusal of the court below to grant a new trial and enter judgment n.o.v. after verdict for the defendants.

Judgment had been entered in favor of the plaintiff and against the defendants in the amount of $2126 on a judgment note under seal. After petition to open the judgment, it was opened upon agreement of counsel. Complaint was then filed by plaintiff, followed by

[ 177 Pa. Super. Page 255]

    defendants' answer setting up the affirmative defense of duress. After reply the case was tried before a jury which found for the defendants.

The plaintiff is the brother of Kathryn R. Powers one of the defendants. The two of them along with their father had title to the premises where the two resided. Plaintiff claims his sister promised to live with him "until he got well," but later she and her husband, the other defendant, decided to move into a home of their own.

The evidence shows that when she told her brother of their intentions, he got "mad" and "excited." He insisted that she and her husband give him a note for the value of her interest in the house. He cursed her and threatened her saying: "You know, one more dead body won't make any difference to me."

Mrs. Powers was pregnant at the time and expected her child any day. When her brother behaved thus, she testified, "I got so excited that I just wanted to get out of there without anything happening." Two or three days later she went to her lawyer and explained her brother's demand and conduct. Although he advised her against signing the note she insisted upon his preparing it. She, and later her husband who was ...


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