61 Pa. Super. 483 | Pa. Super. Ct. | 1915
Opinion by
This was an action of assumpsit on a promissory note for one thousand dollars made by the defendants to the order of J. H. Crider, and before maturity sold and transferred by him to Charles A. Bitner by writing endorsed thereon. The defense was that as between the original parties to the note Basinger was surety for Diehl and that Diehl, the principal, gave the note under duress exerted by Crider. “The general rule undoubtedly is that the defense of duress is open only to the party upon whom it is imposed, and that a third party who has become surety for the payment of the claim cannot avail himself of the plea unless he signed the obligation without knowledge of the duress.” Mestrezat, J., in Fountain v. Bigham, 235 Pa. 35. The .principle upon which the surety who has signed without knowledge of the duress practiced on the principal may avail himself of the defense was clearly set forth and illustrated in Griffith v. Sitgreaves, 90 Pa. 161, and is applicable here. There was ample evidence to warrant a finding that Diehl executed the note under duress and the testimony that Basinger did not know of the duress was full and uncontradicted. It follows that the court was right in instructing the jury that the testimony, if believed, established a good defense in favor of both defendants as against Crider, the payee.
, Assuming that the title of Crider who negotiated the note was defective within the meaning of Section 55 of the Negotiable Instruments Act of 1901, the question arises whether the court erred in not instructing the jury that notwithstanding the defectiveness of Crider’s title the plaintiff was a holder in due course and, therefore, entitled to recover. The law upon the subject is thus expressed in Section 59 of the Negotiable Instruments Act:
Motion for nonsuit was made when this appeal came on for argument, based to a large extent upon objections to the form of some of the assignments of error. It must be conceded that the form of these assignments was objectionable. But, be that as it may, in view of the exception granted by the learned trial judge to the charge and the answers to points, there is no well founded objection to the assignment which we have said must be sustained.