| Pa. | Mar 15, 1886
delivered the opinion of the court, March 15th, 1886.
The defendant begins his argument by saying, “The.only fact in question is whether Mitchell agreed to take a note instead of cash.” Respecting this, as well as other pertinent facts, the testimony was conflicting, and the court determined the credibility of witnesses and disposed of all facts in dispute by directing a verdict for the defendant. Now the inquiry is whether the testimony on the part of the plaintiff, if believed, would have warranted a verdict in'bis favor; if so the questions of fact were for th.e jury.
Among the facts testified by the plaintiff are, that he sold Mitchell’s ties at his request, for thirty-three cents, cash, or thirty-six cents credit, per tie, and Mitchell said he would take the note ; that he had no interest in the timber or sale, by way of commissions or otherwise; that Mitchell was present when Linderman refused to make Mitchell the payee in the note; that he indorsed the note and gave it to Mitchell, and after-wards was compelled to pay it; and he details the reasons which induced Mitchell’s request, his compliance, and the maker’s refusal to give the note to Mitchell as payee. Another witness says he was present and heard Mitchell ask Abraham to sell the ties, and say he would take the note, as three cents per tie was too much to lose for cash. Linderman testified that both parties were' in the office, Mitchell said he would take the note in preference to the cash, that Abraham in Mitchell’s presence and hearing requested the note to be drawn in Mitchell’s name, and that he, witness, refused. Hence, if Mitchell’s agreement to take the note is the pivotal point, it is proved by the testimony of three witnesses. If the testimony on the part of the plaintiff is true, all that he did was as t.he friend and agent of the defendant; he had no interest in the timber sold or in the note given therefor, and his indorsement, as between him and the defendant, merely passed the nominal ownership to the defendant, without involving an actual contract of suretyship for the maker. On the other hand, if the testimony on the part of the defendant is true, he sold the timber to the plaintiff and took the note, as indorsed, in settlement of the price; and the plaintiff’s payment of the note was merely his duty, as regards the defendant.
Upon the facts alleged by the plaintiff, which the jury would have been warranted in finding, he is entitled to recover. ’ Mitchell was the real owner of the note before its indorsement, and had a right to demand its transfer. He was present when it was given, agreed to take it, and tacitly assented to the insertion of Abraham’s name as payee. The latter might
. But should the facts be found as alleged by the defendant, the verdict must be in his favor.
Judgment reversed, and venire facias de novo awarded.