Tioga County Savings & Trust Co. ex rel. Klock v. Gates

Citations

• 254 Pa. 298
• 98 A. 968
• 1916 Pa. LEXIS 722

Syllabus

<p>Promissory notes — Judgment note — Defenses—Bankruptcy—Discharge — Subsequent promise to pay — Judgments—Rule to open— Rule to strike off — Practice, G. P.</p> <p>1. Where the question whether a promise was made by a bankrupt subsequent to his discharge to pay a debt created prior to the adjudication of bankruptcy, and whether such promise was clear, distinct, unequivocal and without qualification, depends upon the oral testimony of witnesses, the question should be submitted to a jury.</p> <p>2. A petition for a rule to show cause why a judgment entered on a promissory note by virtue of a warrant of attorney should not be opened and defendant le.t into a defense, averred that subsequent to the execution of the note defendant was adjudicated a bankrupt and was finally discharged. Plaintiff filed an answer averring that subsequent to the date of his discharge defendant made a new, distinct and unequivocal oral promise to pay the note and thereafter made payments thereon. Defendant’s replication denied both the subsequent promise to pay and that payments had been thereafter made on account, and averred that plaintiff’s right of action, if any, was on the alleged new promise. Held, the lower court erred in dismissing the petition, and the rule was reinstated and made absolute.</p> <p>3. In such case, where the judgment was regular on its face, the court did not err in refusing to strike it off.</p>