Hawk v. Maxler

Citations

• 233 Pa. 337
• 82 A. 465
• 1912 Pa. LEXIS 826

Syllabus

<p>Promissory notes — Gift—Question for jury — Pleading—Allegata and probata — Appeals.</p> <p>1. In an action by a mother against her son’s executor on a promissory note in the usual form, made two years before the son’s death and payable three years after its date, the trial judge commits no error in submitting to the jury the question whether the note was given to the mother as a gift, where the mother, on being called for cross-examination, testifies that the note was in fact a gift, that nothing was said between herself and her son as to when it was to be paid, but that she understood that it was to be paid after his death.</p> <p>2. In an action on a promissory note made by a son to his mother, where the affidavit attached to the declaration states that the note was given for a loan, and the proofs at the trial show that it was delivered as a gift, a judgment on a verdict for the mother will not be reversed on the ground of variance, where the question of variance was not raised at the trial, nor plea of surprise then entered, and no assignment of error raising the question is presented to the appellate court.</p>