40 A.2d 910 | Pa. Super. Ct. | 1944
Argued December 11, 1944. The court mistakenly, we think, opened a judgment entered against Abe Roth, one of the defendants, by confession. We are unable to find merit in his defense on the admitted facts; the order will be reversed.
In 1937 defendant Max Roth was indebted to plaintiffs on open book account and on his notes for feed sold and delivered to him by plaintiffs in a total of more than $1,500. Plaintiffs had notified him, in effect, that unless the whole indebtedness was paid or adequately secured no further credit would be extended to him. In response to this notice, Max Roth delivered the *392 first of a series of notes signed by him in the following form: "Jan. 14, 1937. Six months after date, for value received, I promise to pay to Paul Billings Co. The Citizens National Bank of Tunkhannock, Pa. Fifteen hundred and no/100 Dollars with interest." The note contained a confession of judgment over the signature of the maker. The note undoubtedly was on a printed form supplied by the bank and the name of the bank, following that of plaintiffs, as payee, merely indicated the place of payment.
The admitted signature of Abe Roth, under seal, appears on the back of the note under the following: "For value received, I hereby guarantee the payment of the within note to The Citizens National Bank of Tunkhannock, Pa., or bearer, and I hereby confess judgment for the amount thereof, with the same right to collect from me when due as the holder hereof would have against the maker or makers thereof, waiving the stay, exemption and inquisition laws of Pennsylvania." (Emphasis added.) When the note in that form with the signature of both defendants was delivered to plaintiffs, Max was given further credit. Plaintiffs as payee and also as "bearer" might have held the note until maturity and then proceeded to collect it looking to Abe for payment on his undertaking. They however did discount the note at the bank named therein and the following appears on the back of the original note below the signature of Abe Roth: "For deposit only in the Citizens National Bank of Tunkhannock, Pa. to the credit of Paul Billings Co." There were renewals by ten subsequent notes, in identical form, except on the last note, the one in question here, nothing more than the signature of Paul Billings Company appears below that of Abe Roth on the back of the note. When the defendant failed to pay the final note at maturity, plaintiffs bought it back from the bank and received from it a written assignment of the bank's entire interest in the note. Thereafter on April 19, 1943, the *393 judgment in question was entered against Max Roth as maker of the note and against Abe Roth on the obligation assumed by his endorsement. It is conceded that Max is bound by the judgment entered against him.
The undertaking which Abe signed made him a surety of Max's obligation. Act of July 24, 1913, P.L. 971,
The bank in discounting the note probably accepted it on the endorsement of plaintiffs, "for deposit" in their account, treating it as a negotiable instrument. The note and Abe's undertaking authorized judgment by confession before maturity and the note was nonnegotiable. Standard Furnace Co. v. Roth,
Order reversed at the costs of Abe Roth.