
    Norbet v. Witkowski, Appellant.
    
      Judgment — Opening judgment — Note signed by marks — Evidence.
    On a proceeding to open a judgment it appeared that the note was signed by a mark which was witnessed by a justice of the peace. The defendant’s petition alleged that the note was not signed “as an obligation,” but simply as a memorandum of a proposed deal by which defendant was to purchase from plaintiff a saloon. The testimony showed that the defendant took possession of the saloon, ran it for several months, and sold it without the payment of any money to the plaintiff. The defendant was contradicted by a number of witnesses as to material facts, as well as by his own conduct. Held, that the court committed no error in discharging the rule to open the judgment.
    Argued March 5, 1911.
    Appeal, No. 16, March T., 1912, by defendant,, from order of C. P. Luzerne Co., Oct. T., 1910, No. 411, discharging rule to open judgment in case of Anthony Norbet v. Joseph Witkowski.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule to open judgment.
    The opinion of the Superior Court states the case.
    
      Error assigned was in discharging rule to open judgment.
    
      L. Floyd Hess, with him Paul Schmidt, for appellant. — ■
    The paper cannot go into the balance against the defendant: Kaier v. O’Brien, 202 Pa. 153; Thornton v. Meyers, 30 Pa. Superior Ct. 472; Reap v. Featherstone, 4 Luzerne Leg. Reg. 4; Hays v. Hays, 6 Pa. 368.
    The burden of proof where forgery is alleged is on plaintiff. The true question for the lower court to decide where forgery is alleged as a defense, is whether a verdict could be sustained if a jury were to find one in favor of the defendant: Thornton v. Meyers, 30 Pa. Superior Ct. 472; Jacobsky v. Zborowjan, 46 Pa. Superior Ct. 626; Jenkintown Nat. Bank’s App., 124 Pa. 337; Augustine v. Wolf, 215 Pa. 558.
    
      John H. Dando, with him William Brewster, for appellee.
    — Where indebtedness is not denied, judgment will not be opened: Ford v. Tigue, 8 Kulp, 428; Vanacken v. Baldwin, 1 W. N. C. 19; Stark v. Tobin, 2 W. N. C. 80.
    
      July 18, 1912:
   Opinion by

Orlady, J.,

After a full hearing on petition, answer and depositions, the court discharged a rule that it had granted to open a judgment. The execution of the note was denied by the defendant who had signed it by his mark, which was witnessed by a justice of the peace. The original petition alleges that the note was not signed, or delivered, or executed “as an obligation,” and that averment is repeated three times, but that it was simply intended as a memorandum of a proposed deal by which the defendant was to purchase the saloon business of the plaintiff. The testimony clearly shows that the plaintiff’s business was purchased by and was actually delivered to the defendant, who entered into possession of the property and conducted the saloon for five months and subsequently sold it for $740, in cash, which sum he retained without payment-to the plaintiff of any amount. The petition is evasive and contradictory; there is no denial of the actual indebtedness, and the defendant is contradicted by a number of witnesses as to material facts, as well .as by his own conduct. He received the benefit of the note by taking possession of the business on the faith of his note, and should not be permitted to avoid it. The testimony of his witnesses is properly characterized by the learned judge of the court below as “self-stultifying and unconvincing to the last degree, being flatly opposed to the probability based upon his own admitted action.” The plaintiff was corroborated in many particulars, and the court rightly discharged the rule.

The judgment is affirmed.  