9 Pa. Super. 621 | Pa. Super. Ct. | 1899
Opinion by
The plaintiff held two negotiable notes of T. S. Brick, for $200 each, on which the defendant was indorser; and another note of $500, indorsed by Davis Pennock only. The notes not having been paid at maturity were protested, and it is alleged that notice of protest was mailed to the indorsers. Subsequently the plaintiff took from the maker a promissory note for $900, in part as collateral for the two notes indorsed by the defendant. This collateral note was renewed from time to time, on payment of the interest, and was finally reduced by payments to $600. The maker when making these payments- directed that they be applied to the $500 note, indorsed by Pennock, which was accordingly done. This suit was brought against the defendant on the notes indorsed by him, and he seeks to avoid liability on the ground that the acceptance of the collateral note was, in effect, an extension of time to the maker, without the' defendant’s consent, and that, therefore, he was released from liability. The other principal ground of defense relied on here is the refusal of the court to affirm the defendant’s third point, that: “ Where the bank holds funds of the iiiaker of a note, when the note matures, it is bound to consider the interest of the indorser, and if it allows the maker to withdraw his funds, the bank is liable and cannot recover against the indorser.” At the close of the evidence a verdict was directed for the plaintiff.
There would seem to be no room for serious dispute as to
It is alleged in the appellee’s paper-book that the collateral note and its renewals contained these words : “ This note being-given in part as collateral security for two notes of #200 each, indorsed by Jos. N. Marshall.” But this does not appear in the notes of evidence, and no copy of this note is given in the paper-books, although it was probably introduced in evidence, and is now. relied upon as a material feature of the case. It is the duty of the appellant to print the entire evidence, including all documents material to the issue, as required by the rules of court. If this provision was by a separate writing, or was, as alleged, incorporated as a part of the collateral note, it would come within the ruling of Weakly v. Ball, above quoted, and would be for the court to construe ; otherwise the purpose of the parties in giving the collateral note would be wholly for the jury, under proper instructions.
We think the court below erred in directing a verdict for the plaintiff on all the evidence. This for a reason not referred to in the argument, but adequately raised by the eighth specification. It is within the power of the court to pass upon the evidence when the facts or the conclusions to be drawn from
Tli is conclusion does not conflict with the earlier decisions of the Supreme Court holding that sending notice of protest by mail is constructive notice, and sufficient in law. “ It is sufficient proof of delivery of a notice to show, that it was sent ilia letter by post, without proving that the letter was received, provided the delivery be on the day on which notice should be given. The presumption is a fair one that the letter reaches its destination' in due time ; and whether it does or not, this is all the law requires; it would be extremely inconvenient to require more: ” Smyth v. Hawthorn, 3 Rawle, 355; Weakly v. Bell, 9 Watts, 273; Jones v. Wardell, 6 W. & S. 399; Smith v. Bank, 5 S. & R. 318.
Under the evidence of the plaintiff, whether the notice was mailed, was made to depend on oral testimony as well as on the notary’s certificate. The whole question was thereby drawn to the jury: Association v. Kilpatrick, 140 Pa. 405. The case
We think that under the evidence this case should have been submitted to the jury.
For the reasons given the judgment is reversed and a venire de novo awarded.