Appeal, No. 187, Jan. T., 1958, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1956, No. 4108, in case of General Refrigerator and Store Fixture Company v. William O. Fry et al. Judgment affirmed.
Maximillian J. Klinger and Theodore R. Mann, for appellants.
William A. Goichman, with him Max A. Daroff, for appellee.
Before Jones, C.j., Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Edward Mueller of Philadelphia sought a loan of $5,000 from David Fogel, owner of the General Refrigerator and Store Fixture Company of the same city. When Fogel refused to lend the money unless Mueller could supply surety, Mueller prevailed upon a friend, Wm. O. Fry, to sign, with him,*fn* a judgment note in the sum of $6,750. Mueller then asked Fogel to make out two checks, one for $2,504.50 payable to Mueller and the other payable to Mueller and Fry in
the amount of $2,495.50. Later, Mueller returned to Fogel with the two checks, the $2,495.50 one purportedly having been endorsed by Fry. Mueller asked Fogel to sign his name to the checks so they could be cashed since the bank knew Fogel but did not know Mueller. Fogel so signed the checks and Mueller cashed them but gave none of the proceeds to Fry, his signature, as well as that of his wife's, having been forged.
Fogel recorded the judgment note, Mueller absconded, and Fry was left holding the fi. fa.
Fry refused to pay the amount of the note, which was assessed at $7,777.85. Later, by stipulation, the amount was reduced to $6114.28. Fry contended that, since he was a payee on one of the checks but received none of the $5,000, a failure of consideration resulted and he, therefore, was not liable on the note. He accordingly filed a petition in the Court of Common Pleas of Philadelphia to open the judgment. The petition was granted but later rescinded by the court and judgment confirmed in the name of Fogel in the amount indicated. Fry appealed.
From the time that man learned to communicate thought by means of writing, he has been expressing approval of things which he later repudiated. Whether he chiseled his name to a stone, scribbled it on parchment, or penned it to twentieth century bond paper, he has found reasons to regret his signature and has appealed to some tribunal to be excused from the obligation he voluntarily assumed. Thus William Fry asserts that he is not liable under the judgment note because he signed as an obligor and not as a surety. But the court below found, from depositions which were taken, that Fry never expected to receive any of the ...