Opinion
September 26, 1933.
November 27, 1933.
Evidence — Parol — Fraud, accident or mistake — Nonnegotiable promissory note — Judgment by confession.
Judgment entered by confession on a nonnegotiable promissory note will not be opened on the ground of an alleged oral agreement postponing the maturity of the instrument and providing that the note was to be paid out of the proceeds of the sale of particular property, where there is no averment or proof that this understanding was omitted by fraud, accident or mistake.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 147, March T., 1933, by defendant, from judgment of C. P. Mercer Co., April T., 1930, A.D., No. 482, April T., 1931, E. D., No. 55, in case of Nathan Rosenblum Co. v. A. M. Rosenblum. Order refusing to open judgment affirmed.
Petition and rule to open judgment. Before MCLAUGHRY, P. J.
The opinion of the Supreme Court states the facts.
Rule discharged. Defendant appealed.
Error assigned, inter alia, was discharge of rule, quoting record.
Sidney E. Rosenblum, with him Louis J. Wiesen, for appellant.
C. E. Brockway, of Whitla McKay, with him Nathan Routman, for appellee.
Argued September 26, 1933.
Defendant appeals from an order of the court below refusing to set aside an execution and to open a judgment entered by confession against him upon a nonnegotiable promissory note. Appellant's petition averred as matters of defense an alleged oral agreement postponing the maturity of the instrument, i. e., providing that the note was to be paid out of the proceeds of the sale of the property levied upon, and further it alleged title to this property was held by a partnership and was consequently not susceptible of levy and sale on an ordinary fi. fa.
All questions raised by appellant were correctly disposed of by the court below and need not be discussed at length here. Not only was there no sufficient evidence of the existence of an oral agreement modifying the terms of the written instrument, but there was no averment or proof that this understanding was omitted by fraud, accident or mistake: Speier v. Michelson, 303 Pa. 66; Russell v. Sickles, 306 Pa. 586. In addition, there was a total lack of convincing testimony that the property in question is owned by a partnership and the lower court properly rejected this contention.
The order of the court below, refusing to open the judgment, is affirmed at appellant's cost.