Weller's Appeal

3 Pennyp. 545

• Court: Pennsylvania Court of Common Pleas, York County
• Decided: October 18, 1883
• Docket: No. 313
• Status: Published

Opinion

— The opinion of the Court was delivered by

Paxson, J.

This was an appeal from the refusal of the Court below to open a judgment entered upon a warrant of attorney. It was not denied that the appellant was a surety, and that when he signed the note it had attached to it the names of John Keener and Daniel Miller as makers. In point of fact Keener was the payee, Miller the principal, and the appellant his surety. It was alleged by the appellee that the name of Keener as maker was signed by mistake, and upon his own motion the Court below subsequently amended the record of the judgment by striking out his name, leaving it to stand as a judgment of John Keener v. Daniel Miller and Henry Weller. This amendment and the refusal of the Court to open the judgment are assigned for errors.

It was urged that the amendment came within the second section of the act of 4th May, 1852, P. L., 574, which provides : “ That all actions pending or hereafter to be brought in the several courts of this Commonwealth, and in all cases of judgment entered by confession, the said courts shall have power in any stage of the proceedings to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party.”1

The act of 12th of April, 1858, P. L., 243, declares that the second section of the act of 1832, above cited, “shall be so construed as to authorize the said courts, whereby reason of there being too many persons included as plaintiffs or defendants by mistake as will prevent the cause from being tried on its merits, to permit an amendment by striking out from the suit such persons as plaintiffs or defendants.” Statutes of amendment very properly receive a liberal construction. But amendments which deprive the opposite party of any valuable right should not be allowed: Kille v. Ege, 1 Norris, 102. Has the appellant been injured by the amendment, or deprived of any valuable right ? He alleges that he signed the note on the strength of Keener’s name, knowing him to be responsible. Even if this be so,, appellant would not be relieved unless some fraud was practiced upon him. It is not pretended there was any collusion between Keener and Miller. The appellant knew when he signed the note that he was becoming bail for Miller. He knew the latter expected to raise money upon the note. If he had read the note he would have seen that Keener was the payee. This of itself was sufficient to put the appellant upon inquiry. It is true the note of Keener to his own order was regular, and might have passed from hand to hand without comment. But when Miller took such a note to appellant and asked him to become bail for him (Miller) upon it, the case is widely different. As before stated, the object of the transaction was to enable Miller to get money from some one. From whom could he get it but Keener % The note was payable to his order, and could not be used without his indorsement A man of ordinary intelligence could not have been deceived by Keener’s name appearing on the note as maker. In any event, there was such an irregularity as to put appellant upon inquiry. If he had made such inquiry he would have ascertained the truth ; that Miller was to get the money from Keener, and that he (appellant) was becoming bail for Miller to Keener.

That the appellant was an illiterate man and understands the English language imperfectly does not affect the case in the absence of any fraud practiced upon him. No one is bound to sign an instrument which he does not understand. If, however, he does sign it without asking to have it read or explained to him, he is bound by it: Thoroughgood’s case, 17 P. F. S., 389. The courts have gone far enough in relieving men from their obligations upon the plea of ignorance.

The appellant intended to become bail for Miller. He might have known, and would have known if he had asked the question, that the money was to come from Keener. This would have made it clear that the signature of the latter as maker was a blunder.

We find no error in this record.

Judgment affirmed.