Appeal, No. 446, Jan. T., 1915, by plaintiff, from judgment of C. P. Huntingdon Co., May T., 1912, No. 146, for defendant n. o. v., in case of Y. A. Oswald v. Margaret A. Jones and H. D. Taylor.

Assumpsit on a promissory note.

The facts appear in the following opinion of Woods, P. J., sur defendant’s motion for a new trial and for judgment n. o. v.:

The foregoing case was tried before a jury, who found for the plaintiff. A motion for judgment n. o. v. was filed, and.subsequently motion and reasons for new trial.

The defendant is a married woman and as such she alleged that the note was given to secure money for her husband and that she was simply surety for him. A petition was presented alleging this fact, and an issue was awarded to determine the question.

The defendant alleges that the testimony established the fact as alleged by defendant.

The plaintiff denies the allegations of the petition and testifies that the money was given on the defendant’s . credit.

The testimony shows that the husband of the defendant transacted the business. He first sought the loan and offered his wife as surety. This was refused, and the plaintiff testified that the husband must be eliminated, and then the husband secured the loan for his wife.

The evidence fails to show that the plaintiff and defendant ever met or had anything to do with each other, all the transactions were carried on between the defendant’s husband and the plaintiff. The defendant got nothing. Her husband obtained the business at Watsontown and sold the beer of the plaintiff after having-obtained a license.

The note given by this married woman was presumed to be valid and it is incumbent upon her to show that she was not liable: Merchants’ & Mechanics’ Bk. of Scranton v. Poore, 231 Pa. 362; Farmers & Merchants Bk. of West Newton v. Donnelly, 247 Pa. 518.

While the courts demand proof that the note given was invalid, at the same time it is the duty of the court to recognize the principle as laid down in Manor Nat. Bank v. Lowery, 242 Pa. 559, 564.

“If Urilla Lowery for the purpose of giving a security for a loan that the husband had arranged for his own benefit,......if she so signed this note, she is surety only, and being a surety, the note as to her, is a nullity.”

The uncontradicted testimony is that the husband wanted the money for his own use, and the plaintiff agreed to let the wife have the money if the husband was eliminated. Plaintiff knew the defendant’s husband wanted to go into the hotel business at Watsontown and refused to give the money to him for that purpose, but was willing and did give the money to the wife so that the husband could go into the very same business at the same place. He. knew what the husband wanted {he money for and with that knowledge he never communicated to the wife except through the husband. He was not willing to furnish the money on a note signed by E. G. Jones, the husband of Margaret A. Jones, the wife, and H. D. Taylor.

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