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Court of Common Pleas of Lancaster County

Christ v. Mink. Judgment note-Misuse of by plaintif-Accommodation. Where the defendant signed a judgment note in blank and gave it to the plaintiff as an accommodation to him for the purpose of making a loan, he cannot fill it out and enter it up as payment of a loan due him from the defendant, and such judgment will be opened,

Rule to open judgment. April Term, 1919, No. 252.
B. F. Davis, for rule.
Jos. T. Evans and John E. Malone, contra.
April 17, 1920. Opinion by HASSLER, J.

On June 21, 1919, at the request of the plaintiff, the defendant signed a blank note, dated June 23, 1919, payable to the plaintiff on demand, which contained a warrant of attorney to confess judgment. This note was subsequently filled up by the plaintiff for $650.00, and on June 23, 1919, he entered judgment on it. The defendant now asks to have this judgment opened for the reason that he signed the note as an accommodation to the plaintiff, his father-in-law, to enable him to make a loan. The defendant, in his answer to plaintiff's petition, denies that he told the defendant he wanted to make a loan, and alleges that the defendant was indebted to him in a sum in excess of $650.00; that the note was given in part payment of that indebtedness; and that the defendant was informed at the time of the signing of it that it was for that purpose.

The defendant testified that he, with his wife, visited the plaintiff on the night of June 21, 1919, when the plaintiff asked him to sign the note, stating that he wanted to make a loan. Three other witnesses testified that the plaintiff subsequently told him that he obtained the defendant's signature to the note by making that representation. The plaintiff does not, in his testimony, support the allegation of his answer that he told the defendant that the note was in part payment of alleged indebtedness, but says that he told the defendant that he wanted to make a loan. The defendant testified that it was because of plaintiff's statement that he wanted to make a loan that he signed the note for his accommodation.

All the witnesses agree that the note was obtained upon the representation that it was to be signed for the plaintiff's accommodation to enable him to make a loan. In entering it as a judgment against the defendant, and attempting to use it, as part payment of an alleged indebtedness of the defendant to him, the plaintiff is using it for a purpose other than that for which he obtained it. The purpose for which he obtained it did not make the defendant liable to him on it, and the plaintiff cannot use it as a payment of an indebtedness due him from the defendant. The plaintiff's representation that he wanted defendant to sign it for a purpose other than that which he intended to use it for, as shown by the use he made of it, is a fraud upon the defendant, and the plaintiff can have no advantage with what he thus obtained by fraud.

VOL. XXXVII, No. 31

Christ v. Mink. We must, therefore, open the judgment, and permit the defendant to make any defense he has to it. If at the trial it appears that the defendant signed the note for the accommodation of the plaintiff, as the plaintiff testified on this application he did, he cannot have any judgment on it, even though he proves that the defendant is indebted to him. The rule to show cause why the judgment should not be opened is made absolute.

Superior Court of Pennsylvania

Commonwealth v. Eber E. Hilton, Appellant (No. 2). Perjury--Determination of original case-Material factsEvidence

Bank books-Bank clerksRecord of notary public-Expert testimony-Photographs.

A trial for perjury need not be postponed until the case in which the defendant is alleged to have sworn falsely is disposed of.

A defendant may be convicted of perjury for falsely swearing that the word " Agt.” after his name signed to a promissory note given in payment for a pair of mules was so written by him when he signed the note, the purpose of his testimony being to corroborate his wife's claim to the property in a sheriff's interpleader case. Such testimony was material to the issue then being tried.

In a prosecution for perjury in relation to the signature on a promissory note, the books of a bank through which the note was collected are admissible, and also the testimony of the clerk who kept them, and of other clerks testifying from personal recollection, as to the signature when the note was received.

In such case it is not error to permit a handwriting expert to testify that when a writing is photographed, black ink will show darker than purple ink, and to admit the photograph taken by him of the signature in question.

The record of a deceased notary public, established by a witness as to the genuineness of his handwriting, is admissible in evidence to show the form of a note protested or whether a note signed as alleged was protested.

Appeal No. 275 of October Term, 1917, from verdict and judgment of the Court of Quarter Sessions of Lancaster County to January Sessions, 1916, No. 29. Affirmed.

Prosecution for perjury as witness in interpleader issue of Hilton v. Leibig Mfg. Co. Verdict of guilty and new trial granted. (See 34 L. L. R. 228.) On second trial the verdict was guilty and a rule for new trial was discharged. (See 35 Law Review 9.) On appeal, the judgment was reversed. (See 35 Law Review 201.) On appeal to the Supreme Court, the judgment of the Superior Court was reversed and the record remitted to the Superior Court.

Error assigned was inter alia the refusal of the Court below, Hassler, J., to direct a verdict of not guilty if the defendant was the agent of A. Belle Hilton, and the admission of evidence as to the alteration of the notes and the testimony of the bank clerks as to the entry thereof in the bank books and of the expert witness in relation to the alleged alteration thereof.

B. F. Davis, for appellant.

The word "Agt." had no legal significance and its addition was immaterial.

M. & M. Bank v. Follett, 11 R. I. 92.
Express Pub. Co. v. Aldine Press, 126 Pa. 347.

Groff v.

Commonwealth v. Eber E. Hilton, Appellant (No. 2). The validity of the notes was immaterial in the interpleader trial.

Evans v. Evans, 155 Pa. 572.

Gockley v. Miller, 162 Pa. 271. The defendant had no knowledge of the book entries and they were not admissible against him. Books of a corporation are not evidence against strangers.

Com. v. Woepler, 3 S. & R. 29. The expert evidence was improperly admitted and given undue weight.

Groff, 209 Pa. 603.
Chambers v. Mesta Machine Co., 251 Pa. 618.
Ake v. Pittsburg, 238 Pa. 371.
Fuller's Estate, 232 Pa. 182.
Yardley's Estate, 21 Dist. Rep. 215.

Com. v. Dickinson, 3 Clark 265.
It is essential that the alleged false testimony be material.

Com. v. Garvey, 65 Super. 56.
John E. Malone, Coyle Gun Keller and $. V. Hoster man, District
Attorney, for appellee.

Perjury may be committed in falsely swearing to details or collateral matter in order to strengthen a case.

2 Wharton on Crim. Law 41. The testimony of the handwriting expert was properly admitted. The evidence of the bank clerks and the books kept by them, as well as the deceased notary public's, were properly admitted.

Phila. Bank v. Officer, 12 S. & R. 49.
Penna. Trial Evidence, Sec. 94.
Com. v. Berney, 28 Super. 61.

Littieri v. Freda, 241 Pa. 21. Where there is an absence of an entry of the transaction, or something connected with it which it was the duty of the person making the record to record, it is admissible in evidence to show that the transaction did not occur.

Pennsylvania Trial Evidence, Sec. 94.
Nourse v. McCay, 2 Rawle 70.

Com. v. Berney, 28 Sup. 61.
February 28, 1920. Opinion by PORTER, J.

The defendant having been convicted in the court below upon an indictment charging that he had committed perjury in an interpleader proceeding, took this appeal. When the appeal was first considered, the majority of this court held that the judgment must be reversed for the reason that the case had been tried in the court below before a final judgment had been entered in the interpleader proceeding: Commonwealth v. Hilton, 69 Pa. Superior Ct. 222. The Commonwealth appealed from that decision to the Supreme Court, which reversed the decision of this court, holding that the judgment ought not to be reversed for the reason stated in our former opinion, but remitted the Commonwealth v. Eber E. Hilton, Appellant (No. 2). record to this court in order that other questions raised by the specifications of error and not disposed of by our former opinion might be considered. That decision of the Supreme Court has not yet been reported.

There remain to be considered four questions involved, as stated by the appellant, which we will consider in the order in which they arose at the trial. It is contended on behalf of the appellant that the testimony which the Commonwealth alleges as perjury was not material to the issue involved in the interpleader proceeding. The property involved in the interpleader proceeding was two pairs of mules which had been levied upon by the sheriff as the property of this defendant. The wife of the defendant claimed the property, asserting that she had bought one pair of the mules from Henry Kendig and that the other pair had been bought of Edwin S. Clendenin by her mother, Margaret C. Hill, who had since died and the title to the mules had passed to the claimant. It appeared at the trial that Margaret C. Hill had not herself dealt with Clendenin, nor had the wife of the defendant personally dealt with Henry Kendig. There was no question that in each of these cases this defendant had made the bargain. This defendant testified that he bought one pair of mules at a public sale of the property of Edwin Clendenin ; that the mules were knocked down to him, but that he bought them for Margaret C. Hill, although he did not announce that fact at the time of the sale; that he paid for them the next day by a note of Margaret C. Hill and Ellis Brown, the latter being surety. The note was offered in evidence and marked as an exhibit, and was a note for $348.75 payable to the order of Edwin C. Clendenin signed by Margaret C. Hill and Ellis Brown, as makers. The defendant also had testified at the trial of the interpleader that the other pair of mules had been bought by him from Kendig, at private sale, that he was acting for his wife in that transaction but did not so inform Kendig, and that he gave in payment for them a note, which was marked as an exhibit and offered in evidence, and was a note for $375.00 payable to the order of Henry Kendig, the signature of the maker being “Eber E. Hilton, Agt.” These notes were ordered to be impounded by the court at the trial of the interpleader proceeding, and there is no question whatever that they are the same notes which were referred to in the subsequent trial of this defendant for perjury. The defendant testified at the trial of the interpleader proceeding that these notes were in the same condition, signed in the same way, in which they were when they had been given to Clendenin and Kendig, respectively. These notes and the testimony of this appellant with regard to them directly tended to corroborate his assertion that in making the purchase from Clendenin he was acting for Margaret C. Hill, and that in buying from Kendig he was acting not for himself, but as agent for another. This testimony was material to the issue then being tried : Commonwealth v. DeCost, 35 Pa. Superior Ct. 88; Commonwealth v. Bobanic, 62 Pa. Superior Ct. 40.

Kendig testified that when he received the note from this defendant, in payment for the mules, and during the time the note was in his possession the name of the maker which appeared upon it was Eber E.

Commonwealth v. Eber E. Hilton, Appellant (No. 2). Hilton, and that the name was not followed by the initials “Agt.”, the abbreviation for the word “agent”, which this defendant had in the interpleader proceeding testified had been upon the note at the time he gave it to Kendig. The endorsement upon the back of the note showed that it had passed through the Lancaster Trust Co. for collection. The Commonwealth called as a witness the collection clerk of that institution, who testified that it was his duty to enter all notes, with the name of the maker, upon the collection register of the trust company, and that he had made an entry of the Kendig note upon such register at the time the note passed through the bank, and that he had had the note at the time he made the entry, and that he entered the note as it was drawn. The Commonwealth offered in evidence the collection register, which disclosed a note signed by Eber E. Hilton as maker, without the addition of "Agt”. The defendant objected, but the court admitted the evidence. The entry on the collection register was made in the regular course of business by the person whose duty it was to enter it, he had before him the note at the time he made the entry, the facts were within his knowledge; and no motive to pervert the truth is apparent; the evidence was properly admitted : Commonwealth 7. Berney, 28 Pa. Superior Ct. 61; Littieri v. Freda, 241 Pa. 21.

The Commonwealth called as a witness T. H. McCool, an expert in handwriting and photography, whose testimony so fully established his experience and qualifications that the learned counsel for the defendant did not object to his testifying as an expert. He testified that upon the note given to Kendig the name of the maker, Eber E. Hilton, had originally been written with black ink but that the abbreviation "Agt.” had been written with purple ink, and that the name of the maker had, after having been written with black ink, been afterwards traced over with purple ink. This testimony was admitted without objection. The only parts of his testimony assigned for error are those in which he testified that when a writing is photographed the photograph will show writing with black ink to be much darker than that written with purple ink, that writing of any color except black and red will produce lighter in a photograph. The witness produced photographs of the signatures which had been taken by himself, and the admission of these photographs in evidence is also assigned for error. The court in charging the jury fully explained to it the character of this evidence, the purpose for which it was offered, the caution with which it should be received and the limitations of the weight to which it was entitled, and we are of opinion that the testimony and the photographs were properly admitted in evidence: Commonwealth v. Pioso, 17 Pa. Superior Ct. 45; Wenchell v. Stevens, 30 Pa. Superior Ct. 527. There is no doubt as to the identity of the paper which passed through the trust company for collection. The collection register of the bank, made at the time, and the testimony of the expert would in a civil case be sufficient to warrant a finding by a jury that the letters “Agt.”, the abbre viation for agent, did not follow the name of the maker, Eber E. Hilton, at that time. This was a sufficient corroboration of the positive testimony of Kendig as to the condition of the note when he received it

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