17 Pa. Super. 128 | Pa. Super. Ct. | 1901
Opinion by
This was an action of assumpsit brought by a bona fide purchaser for value before maturity of a promissory note against the maker. The note was drawn upon a printed blank, which, before being filled, was in this form:
When the note came into the plaintiff’s hands it read as follows :
The defendant set up two defenses : first, that the signature to the note is a forgery; second, that, if he executed the note, it was altered after it left bis hands, and without his authority, by the insertion of the words, “ or bearer.” As to the second defense the learned judge instructed the jury as follows: “ Secondly, if Buckwalter signed a note, and you find this to be the
In Leas v. Walls, 101 Pa. 57, the instrument was a printed blank note with an open space for the insertion of the amount, the word “ dollars ” being printed at the end of the space. The successful alteration of the amount from eight to eighty was made possible by the maker’s omission to completely score out the blank. Whether or not he was negligent in not beginning the scroll so close to the word “ eight ” that not even a single letter could be inserted, was held to be a question for the jury. It is thus seen that the question is not, whether the maker so drew the paper as to make it possible to alter it without detection, but whether he failed to use ordinary care and precaution to protect not only himself but the public against a fraudulent alteration of the instrument. It is a question of negligence, to be determined by the court if the facts are not in dispute, and but one reasonable inference can be drawn from them, as in Garrard v. Haddan, or to be submitted to the jury with proper instructions, if there be doubt as -to the facts or as to the inferences to be drawn from them, as in Brown v. Reed. The Pennsylvania cases upon the subject differ in that regard only. They all teach one principle, which has been declared to be, “ that, if the maker of a bill, note or check issues it in such a condition that it may be easily altered without detection, he is liable to a bona fide holder who takes it in the usual course of business before maturity. The maker ought surely not to be discharged from his obligation by reason or on account of his own negligence in executing and issuing a note that invited
The genuineness of the signature to the note was in issue. The plaintiff in his first and third points impliedly admitted this to be so, and invited the submission of the question to the jury. Under the defendant’s testimony the court could not have done otherwise. The credibility of the defendant, and the effect of his testimony, if believed, were for the jury to determine. If they believed him, they were justified in finding that the signature was a forgery. We agree with the plaintiff’s counsel that it would have been entirely proper for the court to call the jury’s attention to the personal interest of the defendant and to the argumentative character of some portions of his testimony. But we cannot say that his omission to do so is ground for reversal. “ That a judge does not make all the remarks of which the nature of the case may admit is not invariably ground for reversal. If such were the rule few judgments would be affirmed, for there are few cases in which something in addition, that might have- been appropriately said, could not be suggested:” Wetherill v. Erwin, 12 Pa. Superior Ct. 259. The first, second and eighth assignments are overruled.
The testimony which is quoted in the eleventh, twelfth and thirteenth assignments was not admitted for the purpose of proving a parol agreement or condition between the maker and the payee, nor in his charge did the learned judge permit the jury to give it that effect. The defendant admitted that he signed a note, but contended that the words “order of” and “ Farmers National Bank of Lancaster ” were crossed off, and the words, “ To be paid at H. L. Buckwalter’s house ” were
Though the presumption that a witness has testified to the truth may be removed by proof that he has testified differently upon a former trial of the same case, still it belongs to the jury to weigh such evidence and to determine the credibility of the witness. According to the better reasoning and the weight of authority, the maxim “ falsus in uno, falsus in omnibus,” which is supposed to apply here, is a rule of permission, and not a mandatory one to be laid down by the court as binding the jury without regard to the corroborating circumstances. We think, therefore, that the court committed no error in its answer to the plaintiff’s second point. The sixth assignment is overruled.
In the portion of the charge which is the subject of the third assignment of error, the court correctly stated the substance of Alderman Halbach’s testimony, and, whilst the learned judge might well have omitted any reference to what the defendant’s counsel said at the hearing, it is to be.observed that he did not misstate what Alderman Halbach had testified to upon that subject. Notwithstanding the very earnest and zealous argument
None of the assignments of error being sustained, the judgment is affirmed.