Fisher v. O'Donnell

Citations

• 153 Pa. 619
• 26 A. 293
• 1893 Pa. LEXIS 1155

Syllabus

<p>Opening judgment — Payment—Meceipts—Principad and agent — Possession of securities — Evidence.</p> <p>A judgment entered on a scire facias sur mortgage will be opened where the evidence for defendant tended to show that the money was borrowed from the plaintiff’s assignor under an agreement that it should be repaid in installments, that the assignment was not recorded but the securities were delivered to plaintiff, that various payments on account of principal were made to the assignor and receipts given, some of which were signed in the assignor’s name, some in the name of both plaintiff and her assign- or, and one by the assignor for plaintiff, and from the admission of plaintiff it appeared that the assignor had been her guardian and had full charge of her financial affairs, and that the money borrowed had really been furnished by plaintiff. While the evidence was sufficient to put defendant on inquiry as to plaintiff’s title and the extent of the assignor’s authority to act for her, it was proper for the jury to pass on the question of agency or whether plaintiff knowingly or negligently permitted the assignor to act so as to mislead defendant to suppose he had authority.</p> <p>Laches — Delay by defendant to make application to open judgment.</p> <p>A delay of two months to make application to open judgment will not bar defendant, where it appears that the suit was pending for three years before plaintiff became urgent for judgment.</p>