Kurtz v. Lawrence

Citations

• 269 Pa. 22
• 112 A. 83
• 1920 Pa. LEXIS 749

Syllabus

<p>Contract — Receiver—Sale—Approval by court — Promissory note —Parol agreement — Principal and guarantor — Guaranty—Frcmd on court.</p> <p>1. In an action against the guarantor on a promissory note, given to a receiver under a contract known to defendant by which the receiver was to sell certain real estate, and accept therefor the note in question and deferred installments in cash with a provision that if the conditions of the contract were not carried out the moneys paid should be forfeited, and the note should be due and oollectible, binding instructions should be given for plaintiff, where the only defense offered is parol testimony to the effect that the note was to be used by the receiver to secure the approval of the sale, and that, if the sale was not approved by the court, the note should be returned to the maker, and .other evidence in the case shows that the sale was confirmed by the court only on condition that the note and the first installment in cash should be paid, and that this condition had not been complied with.</p> <p>2. In such case the unconscionable character of the defense is further shown by an averment .of the affidavit of defense to the effect that the guarantor knew, when he signed the note, that it was intended to be exhibited to the court as evidence that there had been “a payment on the contract of sale.”</p> <p>3. If the note was not to be paid, the guarantor made himself a party to a fraud upon the court, and the policy of the law, under the circumstances, is to leave him just where he placed himself, fettered by the bond which he put upon himself.</p>