decided: April 3, 1974.
MARS ET UX., APPELLANTS
Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1969, No. DSB 6586, in case of Joseph F. Ritchey v. James F. Mars and Elizabeth Mars.
Samuel M. Rosenzweig, with him Rosenzweig & Rosenzweig, for appellants.
Donald S. Little, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Hoffman, J. Jacobs, J., concurs in the result.
[ 227 Pa. Super. Page 34]
This is an appeal from an order denying appellants' petition to open a judgment, which they contend was entered on a note unsupported by any consideration and obtained by an unauthorized signature thereon.*fn1
[ 227 Pa. Super. Page 35]
On June 7, 1966, the appellee (hereinafter Ritchey) sold a property (Colwyn Road) to the appellants for $35,000.00. The Mellon National Bank provided mortgage financing of $25,000.00, leaving an indebtedness of $10,000.00.*fn2 On December 12, 1967, Mr. Mars signed a note, containing a cognovit clause, payable to Ritchey in the amount of $7,620.00.*fn3 Mr. Mars and another witness stated that he signed the note at Ritchey's behest so that the latter could show a bookkeeping loss. They further testified that Mr. Mars signed his wife's name to the note when Ritchey presented it to him.
In order to open a judgment by confession the judgment debtor must act promptly and produce evidence in support of a meritorious defense. Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967). There is no contention that appellants failed to act promptly by petitioning to open the judgment within a month of learning that the judgment had been confessed.
As to the requirement of a meritorious defense, a judgment debtor does "not have to prove its case conclusively. All it [must] do [is] produce such evidence as would persuade the court that, upon submission of
[ 227 Pa. Super. Page 36]
the issue to a jury, a verdict in its favor could be upheld."*fn4 Yellow Cab Company of Philadelphia v. Carpol Realty Co., Inc., 221 Pa. Superior Ct. 132, 136, 289 A.2d 241 (1972).
In the instant case, if appellants' version of the real estate transaction and the signing of the note is accepted,*fn5 there was no consideration for the alleged debt, and this would be a complete and meritorious defense. Act of Oct. 2, 1959, P. L. 1023, § 3-408; Uniform Commercial Code, 12A P.S. § 3-408.
In addition to the averment of a meritorious defense, there are other circumstances which support the opening of the judgment. Appellants did not retain counsel to represent them in the transaction, but relied upon Ritchey's assurances that it was unnecessary as he would take care of all arrangements. Since the parties were close personal and business friends, there appears to have been some basis for appellants' reliance on Ritchey's assurances. The sale of the Island Avenue property at a price significantly less than its alleged value*fn6 without consulting appellants supports their version of the transaction. The appellee, moreover, has not explained the unusual circumstance of the
[ 227 Pa. Super. Page 37]
note being executed one and one half years after the debt was incurred.
We also believe that Mrs. Mars is entitled to pursue her defense of forgery. Mr. Mars stated that he signed his wife's name to the note. Another witness corroborated Mr. Mars' testimony. Mrs. Mars stated that she never signed the note and never gave her husband the authority to do so. If Mr. Mars did, in fact, sign his wife's name to the note, she would not be liable thereon, for the mere existence of a marital relationship neither gives rise to a relationship of principal and agent nor the authority by one spouse to bind the other absent consent or ratification. Madden v. Gosztonyi Savings and Trust Company, 331 Pa. 476, 200 A. 624 (1938); Schweitzer v. Evans, 360 Pa. 552, 63 A.2d 39 (1949).
The trial judge disbelieved both appellants and another witness regarding the signature on the note. Normally, such a determination of credibility is within the prerogative of the trial court even if it is based upon his review of transcribed depositions. Gregory v. Fassett, 178 Pa. Superior Ct. 599, 116 A.2d 304 (1955). However, appellee produced no competent evidence*fn7 to rebut the testimony given by appellants and an apparently disinterested witness. Where a judgment debtor offers clear and substantial evidence that a signature on a note is a forgery, the burden of proof shifts to the judgment holder to establish the genuineness of the signature. Carlson v. Sherwood, 416 Pa. 286, 206 A.2d 19 (1965). The appellee failed to meet that burden in the instant case, and the court
[ 227 Pa. Super. Page 38]
below erred in its refusal to open the judgment. Yank v. Eisenberg, 408 Pa. 36, 182 A.2d 505 (1962).
The order of the court below is reversed and the case remanded for proceedings consistent with this opinion.
Order reversed and case remanded.