Schoch and Samuel Wigfall, 1,000 each. [Sign-1 of the writing sought to be enforced, if the ed] A. Z. Schoch."

Judgment was entered on a verdict for the defendant, and this appeal followed.

former is at variance with the latter; and when a contract of this nature is adduced, its terms must be proved by clear, specific, The plaintiff proved the above writing; and indubitable evidence. In other words, in that, by judicial decree in the state of Maine, order to sustain such a defense, the evidence the Nevada company had been formally dis- relied upon, taken as a whole, must be so solved, and E. M. Thompson appointed receiv-persuasive in character, so free from selfer and trustee thereof, with power "to col- contradiction or material internal variances, lect by suit or otherwise all outstanding and so intrinsically probable, that the judidebts or claims due said corporation"; fur-cial mind can rest thereon with a conviction ther, that such receiver had been duly au- that the ends of justice would be served by thorized to "commence suits or actions at giving it effect as the basis of a decree relaw or equity for the collection of all moneys forming the writing in suit; that is to say, or other property of said corporation." The the witnesses in support of the alleged conmain defense was an attempt to prove an al- temporaneous parol contract must be credileged contemporaneous parol contract to the ble, and their examination must show them effect that Mr. Schoch was not to be re- to have a distinct recollection of the relevant quired to pay the amount of his written ob- material facts; and, in so far as their eviligation unless and until he disposed of the dence must be mutually corroborative, they stock mentioned therein at a price sufficient should, to a reasonable degree, show a comto give him a profit, and that he should not mon understanding of the particular matter sell for a period of two months from October in question. In brief, their testimony must 22, 1906, but could at any time return the be clear, precise, and indubitable before it stock and get back his acknowledgment of can be permitted to overcome the documenindebtedness. The defendant contended he tary proof to which it is opposed; and, in had signed the duebill on the faith of this al- cases of this kind, after measuring the evileged contemporaneous agreement, and that, dence relied upon according to proper legal being unable to sell, in October, 1907, he standards, a court should never permit a gave back the stock and requested the return jury to do what it would not sanction if sitof his obligation, which request was, in effect, ting as a chancellor. These are the princirefused; therefore he claims the action in ples which must govern the present review. the court below to be a fraudulent use of the Phillips v. Meily, 106 Pa. 536, 544; Hoffman writing in suit, which, under our authori- v. Bloomsburg & Sullivan R. R. Co., 157 Pa. ties, entitles him to relief. 174, 195, 197, 27 Atl. 564; Ogden v. Philadelphia & West Chester Traction Co., 202 Pa. 480, 485, 486, 52 Atl. 9; Williamson v. Carpenter, 205 Pa. 164, 54 Atl. 718; Fuller v. Law, 207 Pa. 101, 104, 56 Atl. 333; Highlands v. Philadelphia & Reading R. R. Co., 209 Pa. 286, 292, 58 Atl. 560; Gandy v. Weckerly, 220 Pa. 285, 288-293, 69 Atl. 858, 18 L. R. A. (N. S.) 434, 123 Am. St. Rep. 691; Faux v. Fitler, 232 Pa. 33, 81 Atl. 91. See, also, Potter v. Grimm, 248 Pa. 440, 94 Atl. 185, for a recent discussion of the abstract right to vary a written contract by proof of a parol agreement.

[1] There are several points in the case, but the most important one concerns the sufficiency of the evidence to sustain the defense relied upon, particularly to prove the alleged parol agreement. The writing in suit is a clear, definite, and unqualified acknowledgment of indebtedness, signed by the defendant, which implies a promise to pay immediately upon demand; and, in order to overcome the strong prima facie case thus made for the plaintiff, the burden was on the defendant to present proof as clear and convincing in character. It is contended, however, that the evidence offered for this purpose was too indefinite, uncertain, and contradictory to establish either the terms of the alleged parol agreement or to prove it was the inducement for the execution of the written obligation, and, furthermore, that the defendant, had he seen fit, could have sold the stock at a figure which would have netted him a substantial profit.

It is established with us that the testimony of a defendant, standing alone, is insufficient materially to modify the plain terms of a written instrument sued upon; that, before such testimony can be permitted to have this effect, it must be corroborated by other witnesses or proof of confirmatory attending circumstances. This rule applies even when the testimony is offered to prove a contemporaneous parol agreement which is alleged

[2] Three witnesses were called to prove the alleged agreement at bar. The first of these, Mr. Hoagland, testified that at the date of the duebill he was the secretary and treasurer of the Nevada company; that E. B. Tustin, who carried on the transactions with the defendant, was a director and member of the executive committee of this corporation; that the witness, upon inquiry as to why Mr. Tustin "received a duebill instead of cash," was informed by the latter that "he had made an arrangement with Mr. Schoch * * * to this effect, that if the stock was sold by Mr. Schoch at a profit, why, he was to pay the duebill; otherwise the stock was to be returned." Later, in reply to the question, "Will you state again what Mr. Tustin told you when he handed you that duebill?" the witness said Mr. Tus

ed, so they were left out; that when he said to the latter, "Suppose I am not able to sell the stock at the price?" Mr Tustin replied, "All you have to do is to ask for the return of your certificate [duebill] and it will be returned to you;" and that, upon getting this assurance, he wrote, signed, and delivered the duebill in suit.

In reading the evidence just reviewed, it will be observed that the first witness testified merely to what had been told him by Mr. Tustin, which was, in brief, that the duebill was signed and delivered upon the understanding that Mr. Schoch was to be given an opportunity to dispose of the stock and pay therefor out of the proceeds, and, if not sold, the stock could be returned at any time. The testimony of the second witness was to the effect that Mr. Schoch "should have a chance to make some money out of it [the sale of the stock]," liquidating his obligation out of the proceeds; further, that no provision was made concerning the duebill in case the defendant failed to realize enough to pay it; and that the witness did not remember anything was stated as to a possible return of the stock. point the evidence went no further than to Thus to this prove that Mr. Schoch gave the writing in suit upon the understanding and agreement that he was not to be called upon to pay for the stock until he could sell it at a price sufficient to liquidate the amount due and realize some profit therefrom.

rangement with Mr. Schoch whereby he was to send this stock to Mr. Schoch, and if he could sell it, or did sell it, at a profit, he was to pay the duebill; otherwise the stock was to be returned." Mr. Tustin was next called. He first said, "The understanding between us was the stock was to be paid for after its sale, so that he (Schoch) should have a chance to make some money out of it." Then he testified the stock was not to be paid for out of profits, but from "the proceeds" of its sale, and that it was understood Mr. Schoch should not be called upon for payment until he had an opportunity to dispose of the stock; but, when asked what the arrangement was in the event of Mr. Schoch not being able to sell, the witness replied, "There was not anything said about that." Subsequently Mr. Tustin stated he did not remember that anything was said about a possible return of the stock, adding, “It was never presumed the stock of the company would depreciate in value;" and, although examined at some length, he shed no further light upon this subject. When the same witness was asked the question, "In the contract with Mr. Schoch contemplating a pos sible sale, who was to judge of the time and price of that sale?" he answered, "There wasn't anything said about that." Mr. Schoch appeared in his own behalf. He stated the stock was sent to him without any prior understanding or request on his part (which Mr. Tustin denied); that, when he saw Mr. Tustin some days thereafter and asked why the stock had been sent, the latter replied, "Some one is going to have the benefit; you have favored me, and I want you to have some benefit; at the proper time sell this stock and out of the proceeds pay for it;" that about two weeks subsequent to this conversation, on October 22, 1906, Mr. Tustin said he was requested by the treasurer of the company to secure some kind of a written acknowledgment, and suggested the defendant give his note, which the latter refused to do; that Mr. Tustin had then stated these conditions to the defendant, "I was not to pay for the stock till after its sale, and out of the proceeds I was to pay for the stock;" further, "the only condition he (Tustin) imposed was that I was not to sell the stock for two months." The defendant then said that Mr. Tustin tried to persuade him to give a written obligation, and assured him "repeatedly of this arrangement and that he would personally make himself responsible to me for any difficulty * * or * responsibility I would have in the matter." Mr. Schoch further testified: "I finally agreed to give him a duebill with the understanding or agreement, as we made it between us or as he proposed, that I was to hold this stock for two months, and then out of the proceeds The difficulty with the defendant's case, pay it, and under no other conditions"; that however, is that he must point to clear, prehe (Schoch) suggested these conditions be cise, and indubitable evidence sufficient, both

Under a contract such as just indicated, the law would imply an obligation, within a reasonable time, to take advantage of a market which afforded an opportunity to sell at a price more than sufficient to meet the duebill. In this connection the uncontroverted testimony shows that for a period of 29 days after October 22, 1906, the date of the obligation, the Nevada company's stock sold in the open market at $3 per share; that for some time thereafter the price fluctuated between $2 and $3, and finally it fell to 25 cents a share. This proves beyond a doubt that the defendant had a fair opportunity to make a reasonable profit by taking advantage of the open market, and, if the testimony of Mr. Hoagland and Mr. Tustin cessity the defense would fail; but, when were the only evidence in the case, of nethe testimony of Mr. Schoch is read, we find he said the alleged oral contract contained these conditions: be sold for two months after the date of the (1) The stock was not to duebill; (2) if, at the expiration of that time, he could not sell at a price sufficient to pay his obligation, he might hand back the stock and secure a return of the duebill; and, if these alleged facts were sustained by sufficient evidence, they might constitute a defense.

finding that the alleged parol contract con- Tustin, yet the subsequent correspondence tained the two material conditions contended between them indicates this was done so for by him, whereas the only proof produced the latter, acting for the former, might upon these points (particularly that the stock give the certificates to the treasurer of the was not to be sold for a period of two Nevada company, and, if possible, get the months) was his own testimony; for, as duebill from him; but there is nothing to already indicated, neither of the other wit- prove that Mr. Hoagland in any sense acnesses depended upon by him gave any cor- cepted a surrender of the stock, nor is it sufroboration of these important features of the ficiently clear that the certificates ever actudefense. Moreover, in a letter written by ally came into his possession, and it plainly the defendant on October 14, 1907, returning appears he declined to return the defendant's the stock certificates to Mr. Tustin, he not written obligation, saying he did not have auonly omits to say anything about the parol thority so to do without the sanction of the contract containing the conditions in ques- board of directors. Hence, on the proofs tion, but states the agreement thus: presented, it cannot be said the Nevada com"This stock was taken with the understanding pany was in any sense estopped by a return that, as we had been instrumental in aiding the and acceptance of the defendant's stock. sale of this stock at the time we would-should-Moreover, we do not think the opinion of the have it without paying for it until such a time as we could turn it at a profit."

In addition, on cross-examination the defendant's story of the transaction was much weakened, and, when compared with the testimony of his own witnesses, in the words of the learned court below, "there were discrepancies and contradictions." Under these circumstances it cannot be said the verdict is sustained by clear, precise, and indubitable evidence.

receiver, expressed to the court which appointed him, that the duebill had no value, can be given any material effect, for there is nothing to show this in any manner harmed the defendant; furthermore, the fact that the receiver did not surrender the duebill, but, by authority of court, passed it to a creditor, indicates that, after all, it must have been considered of some real value. Of course, the fact that no suit was brought till near the end of the statutory period is of no particular significance; and all of these matters, together with the other points suggested by the defendant, whether taken singly or as a whole, have no real value as corroboration of his insufficient testimony concerning the alleged agreement that he was to hold the stock for a period of two months before attempting a sale thereof, which latter fact we have already determined it was essential for him to demonstrate by proof measuring up to the full requirements of the law, in order to sustain the verdict and judgment in his favor.

[4, 5] Since the legal plaintiff showed a right to sue on the obligation before us, it was not necessary for the use plaintiff to prove his title thereto; but, if for any reason it could successfully be contended to the contrary, the evidence produced was sufficient to that end. Finally, the fact that certain dividends were declared by the legal plaintiff, which were not paid to the defend

While the defendant stated Mr. Tustin "was under obligations to me because I made him personal loans of considerable amounts," or "he may have considered himself under obligation to me because of my personal loans to him," and the evidence showed that he (Tustin) was a director of the Nevada company and a member of its executive committee, "delegated" to sell the treasury stock, nevertheless there is no testimony upon the record which indicates any express authority in this director, or in the executive committee as a whole, to make the special arrangement which the defendant claims was entered into with him, or to sell this treasury stock at other than "a price not less than $2 per share," which, of course, would mean $2 in cash or its equivalent; and it appears that, in fact, Mr. Tustin was directed by the treasurer of the corporation to "get cash." Therefore a question might well be raised as to the authority of any one representing the Nevada company to make the al-ant, is of no controlling force, since the releged parol contract contended for by the defendant; but it is not necessary to pass upon that point, for, while it is evident there was a parol agreement of some sort, yet, in view of the variance in the testimony given by the several witnesses depended upon to prove the one alleged, and the lack of sufficient corroboration of the defendant's own version thereof, it is clear that "the measure of proof necessary to warrant the destruction of a written instrument" (Ogden v. Philadelphia & West Chester Traction Co., 202 Pa. 480, p. 486, 52 Atl. 9), i. e., the duebill in suit, was not reached in this case.

[3] Although it appears that in October,

ceiver was authorized to distribute assets to stockholders only "upon the surrender to him of their stock certificates"; and the defendant did not attempt to make such a surrender, apparently preferring to stand on his present defense, although he knew Mr. Hoagland had failed to return the duebill, and that in all probability the certificates were still in the hands of Mr. Tustin. These dividends were not claimed as a set-off in the court below, and the question whether this could legally be done is not before us at the present time. On the evidence as presented, we conclude as a matter of law that the plaintiff was entitled to judgment in his favor,

ed. He cannot, however, claim interest from | November 16, 1907, at the request of Emthe date of the duebill, as suggested in his mott, he loaned to the firm various sums of sixth request for charge, but only from the money aggregating $2,145, which had not time of the demand for its payment. Brey-been repaid to him, and for which he brought fogle v. Beckley, 16 Serg. & R. 264, 265; this suit. Defendant in his affidavit of deJacobs v. Adams, Executor, 1 Dall. 52, 1 L. fense denied that between the dates menEd. 33; Rayne et ux. v. Guthrie & Wallace, tioned in the statement any partnership ex1 Add. 137. isted between himself and Emmott, and also denied that the money was loaned to the firm, or used in the firm business. He further alleged that the claim was res adjudicata. On the trial it appeared from the evidence that the money was advanced by

All the assignments of error covering the points discussed in this opinion which complain of rulings to the contrary of the views here expressed are sustained. The judgment is reversed, and the record is remitted to the court below, with directions to enter judg-plaintiff upon the dates set forth in the ment against the defendant n. o. v. for the amount of the duebill, with interest as already indicated.

(254 Pa. 548)

FUNK v. YOUNG.

(Supreme Court of Pennsylvania. July 1, 1916.) 1. PARTNERSHIP ✪146(2)—Powers and LIABILITIES-REPRESENTATION BY PARTNER.

A partner has no implied power to bind the persons or separate estates of his nonassenting copartners by a note under seal containing a warrant of attorney authorizing confession of judgment, and, while a judgment thereon against the partner executing the note and the property of the firm is proper, the payee is not entitled to judgment on the note against the other part

ner.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. § 248; Dec. Dig. 146(2).]

A judgment sustains a plea of former recovery and bars a subsequent suit only when the merits have been passed upon or from the course of trial might have been passed upon.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1009; Dec. Dig. 562.] 3. JUDGMENT 563(2)—MERGER AND BARCAUSES BArred.

statement. Both plaintiff and Emmott testified that the loans were made to the partnership and were intended for its use. For the first two loans which were made promissory notes were given. When the third loan was made, the promissory notes were destroyed, and a judgment note was given to cover the entire amount loaned up to that time. When the last loan was made, a second judgment note was given. These judgment notes were signed by Emmott in the name of the partnership, and with his own name.

On July 28, 1910, judgment was entered on the two judgment notes, against both partners, but the court struck off the judgment against the present defendant. Plaintiff then brought an action of assumpsit

2. JUDGMENT 562-CONCLUSIVENESS-MAT- against him to recover the amount of the TERS CONCluded. two judgment notes, and obtained judgment against him. On appeal to this court the judgment was reversed as reported in Funk v. Young, 241 Pa. 72, 88 Atl. 291, on the ground that a partner has no implied power to bind his copartner personally by a note under seal, with power of attorney to confess judgment. On May 29, 1913, the present suit was brought to recover the amount of the original loans. The trial judge held that the judgment in the former case was not a bar to this suit, and refused a request for binding instructions in favor of defendant. He submitted the case to the jury to determine whether the loan had been made

A judgment in favor of a partner in a suit on a judgment note executed by his copartner without authority is not a bar to an action against such partner on the loan for which the note was given.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1008, 1010; Dec. Dig. 563(2).] Appeal from Court of Common Pleas, Philadelphia County.

Action of assumpsit by Emil Funk against Mahlon A. Young. From a judgment for plaintiff for $2,829.87, defendant appeals.

Affirmed.

Argued before BROWN, C. J., and MESTREZAT, POTTER, MOSCHZISKER, and FRAZER, JJ.

Harvey Gourley, of Philadelphia, for appellant. C. W. Conard, of Philadelphia, for appellee.

POTTER, J. This was an action of assumpsit by Emil Funk against Mahlon A. Young, who was a copartner with Frederick G. Emmott, trading as Emmott Tea & Coffee Company. In his statement of claim plaintiff averred that between May 31 and

to the partnership or to Emmott individually, and whether plaintiff had any knowledge or reason to believe that Emmott intended to appropriate the money to other than partnership purposes. The jury determined both of these questions in favor of plaintiff, and returned a verdict for the full amount of his claim, with interest. A motion for judgment n. o. v. was dismissed by the court in banc, and judgment was entered on the verdict. Defendant has appealed, and his counsel argue that the judgment in the former suit between these same parties was an adjudication of the question here raised.

[1-3] That contention is answered by the opinion of this court in that case, Funk v.

Young, 241 Pa. 72, 75, 88 Atl. 291, 292. Our Mr. Justice Nelson in Washington, etc., Steam Brother Mestrezat there said: