57 Pa. Super. 296 | Pa. Super. Ct. | 1914
Opinion by
This was a feigned issue framed to try a single question of fact. The defendant does not deny he had become indebted to the plaintiff for merchandise sold and delivered to him in the sum of $1,288. He concedes he executed and delivered to the plaintiff company his judgment note with warrant of attorney in the sum named to secure its payment. After the plaintiff had held the note for a considerable period of time it caused judgment to be entered thereon. This was followed in a few days by the petition of the defendant praying for a rule to show cause why the judgment should not be opened and he permitted to defend on the single ground that he had made payment of the note in the manner hereinafter stated. The rule was made absolute and this issue framed for the purpose of determining that question.
The question at issue is further simplified because the defendant does not allege he paid the note in money or in any of the ordinary equivalents thereof. His whole case rests on the proposition that he gave to the plaintiff company three notes of a corporation known as Bankers’ Trust Company, which notes the plaintiff agreed to receive and did receive in actual payment and discharge of his personal obligation. The testimony shows these notes were of practically no commercial
“Rec’d of Samuel K. Strickler, three bankers trust notes of $500.00 each for payment of note of $1,288.00.
“ (Signed) D. B. Martin Co.
“per H. T. Dumont,”
Dumont did not have with him the note of the defendant. His statement to the latter indicates that he per
It is conceded by everybody, that, under the circumstances stated, the presumption of law would be these obligations of a third party were accepted by the plaintiff creditor only as a collateral or further security for the debt due to it. This presumption, however, is not a conclusive one and may be rebutted by evidence that the intention of both parties was they should be received and accepted in discharge of the debt already due and owing, and as an extinguishment of the obligation already held by the creditor to secure its payment. In such a case the burden is strongly on the debtor, and his allegation ought' to be established by the clear weight of the credible evidence. The learned judge below recognized the principle just stated throughout the trial, but, as we view it, fell into error in the weight and significance which he attached to the receipt already quoted. He appears to have regarded it, and so stated to the jury in the charge and answers to points, as exhibiting an agreement "to accept the trust company’s notes in absolute payment of the note in suit” and affirmed a point of the defendant stating the legal value of the receipt in the language just quoted.
We are by no means able to agree that the receipt, standing alone, can be properly so construed. It certainly contains no usual or apt language to express the idea that the plaintiff was accepting the new obligations in discharge of the debt due to it and in extinguishment of the note referred to. It would have required no professional or technical skill. to have clearly expressed that idea. On the contrary, the receipt simply says these obligations were received "for payment of. note of $1,288.” What is the meaning of the expression
The burden was also on the defendant to show that the individual with whom this transaction was effected had authority to bind his employer by an agreement to give up a portion of the corporate assets and accept the obligations of some third party with whom it had no dealings in their stead. This burden was certainly not lessened by the conceded fact that the officers of the company had but a few months previously, after investigation made, declined to receive the same or similar obligations for merchandise the defendant desired to buy. There is nothing in the title “sales manager” to hold out to the public that such an agent could handle, manage, control or exchange the financial assets of his principal. There was nothing shown by the evidence to indicate that he had ever before attempted such a transaction with the knowledge or subsequent approval of his principal. In a word, there was no evidence upon
As the assignments of error, however, disclose no point for a binding direction to the jury and no motion for judgment non obstante veredicto, there remains nothing for us to do but send the case back for another trial in accordance with the principles laid down in this opinion.
Judgment reversed and a venire facias de novo awarded.