King v. Burns

63 Pa. Super. 555, 1916 Pa. Super. LEXIS 212

• Court: Superior Court of Pennsylvania
• Decided: July 18, 1916
• Docket: Appeal, No. 71
• Status: Published

Opinion

Opinion by

Tkexler, J.,

The only question is whether there was sufficient evidence to show that the judgment note in question had been settled or paid for. The note was dated May 19, 1891, payable three months after date. It was not entered of record until October 25,1913. The court below opened the judgment and submitted the question to the jury as to whether there was anything due upon the note. Some assignments are directed to the admission of testimony but as no exceptions were filed, we need not consider them. See Daly’s Est., 55 Pa. Superior Ct. 488; Green & Co. v. Thompson, et al., 172 Pa. 609; Com. v. Spencer, 6 Pa. Superior Ct. 256.

The note was under seal and purported consideration and it was incumbent upon the defendant to show that it had been paid. The lapse of 19 years would be a circumstance in connection with other testimony tending to show the note had been paid. In any event the matter had to go to the jury. The defendant produced a witness who testified that he had been present on one occasion and heard a conversation between his father, one of the defendants, and Jackson Kohler, the payee of the note, and saw his father pay Kohler some money and that Kohler gave a receipt to his father; that at that time it was said that “we are now square” or “that it squared them up”; that the receipt was destroyed in a fire some years ago, but that it was in full of all accounts. There was no note spoken of at the time and the note was not given to the defendant but it was found among the effects of the plaintiff after his death. It is claimed that the court did not in its charge sufficiently dwell upon the testimony of this witness. We think the charge was fair in this respect, in fact, the judge might have gone further and told the jury that testimony in regard to admissions or statements made of payments are to be received with caution, especially where the party who is said to have made them is dead: Rehm v. Frank, 16 Pa. Superior Ct. 175. The comments of the court upon the evidence were to our mind fair and well within its province.

We have gone over the assignments of error carefully and we think they require no further reference. It was purely a matter of fact for the jury to determine whether the note had been paid or not. The court could not instruct that a lapse of 19 years was conclusive as to payment, or that a failure to make an attempt to collect had wrought a presumption of payment. It is true a shorter period than 20 years with presuasive circumstances, might furnish ground for the presumption but as was said in Diamond v. Tobias, 12 Pa. 312, quoted in Moore v. Smith, 81 Pa. 182, “Exactly what these circumstances may be never has been and never will be defined by law; there must be some circumstances and when there are any it is safe to leave them to the jury.”

The judgment is affirmed.