254 Pa. 409 | Pa. | 1916
Opinion by
This was a suit by the holder of a promissory note against an endorser thereon; the verdict favored the plaintiff, judgment was entered accordingly, and the defendant has appealed.
The first assignment of error complains because the trial court refused an offer to show the defendant did not receive notice of the dishonor or protest of the note in suit. The testimony in question was tendered “to affect the credibility of the local notary,” who had been called by the plaintiff. When upon the stand, the notary produced his certificate of protest in the usual form; which showed a demand on the proper date, with a refusal of payment, and contained the following statement: “Of which demand and refusal I duly notified the makers, Stine & Gitt......H. N. Gitt......(and) C. J. Delone ......(endorsers).” In addition, the witness testified that he had sent word to the defendant of the dishonor and protest of the note, by enclosing a written notice, a copy of which he produced, in an envelope correctly addressed and stamped, which, he personally deposited in a United States mail box at Hanover, at 3:30 o’clock, on
“Section 105 of tbe negotiable instruments law (Act of May 16,1901, P. L. 194) bas changed tbe former rule on this subject by providing that 'where notice of dishonor is duly addressed and deposited in tbe post office, tbe sender is deemed to have given due notice, notwithstanding any miscarriage in tbe mails’; under this section, due notice of dishonor is deemed to have been given when it is shown that tbe notice is properly addressed and deposited in tbe post office, whether it bas been received or not”: Zollner v. Moffitt, 222 Pa. 644, 652. Tbe case just cited also calls attention, at p. 649, to Section 2 of tbe Act of December 14, 1854, P. L. (of 1855) 724, which provides that “the official acts, protests and attestations of all notaries public, certified according to law, under' their respective bands and seals of office, in respect to tbe dishonor of all bills and promissory notes, and of notice to tbe drawers, acceptors or endorsers thereof, may be received and read in evidence as proof of tbe facts therein stated......; Provided, That any party may be permitted to contradict, by other evidence, any such certificate”; we there rule that “this act makes tbe certificate of a notary prima facie evidence of tbe allegations set forth in it, and, if there is nothing in contradiction, it is conclusive of what it contains”: see also Scott v. Brown, 240 Pa. 328, 331; First Nat. Bk. of Shicksbinny v. Tustin, 246 Pa. 151, 155.
In dealing with tbe phase of tbe case now before us, tbe court below states: “The defendant not only did not deny or offer to deny any of tbe things testified to by plaintiff’s witness (tbe notary public), but only attempted to establish by negative allegations......that be did not receive tbe notice.......If tbe defendant bad offered to prove some direct fact which would have tended to show that tbe essential requirements of tbe act of assembly bad. not been performed, either in tbe protesting of tbe note or tbe giving of notice......, the con
The second assignment com plains of an excerpt from the charge concerning this question of notice to the defendant. After briefly referring to the facts just stated by us in disposing of the-first assignment, the trial judge said: “All these things were legally proved to you, and put in evidence, and are with you for your consideration ; now, that constitutes a case for the plaintiff, which the law considers conclusive as against the defendant, unless some intervening legal defense is made which will successfully exonerate the defendant from the payment of the note in question.” The appellant contends that this was “tantamount to telling the jury that it must take the statements of Michael (the notary) as verity”; but, when we consider the fact that there was no real attempt to impeach either the notary’s certificate or his oral testimony, that the part of the charge in question was restricted to the plaintiff’s proofs on the subject of notice to the defendant, that in other parts the trial
The fifth assignment complains because, when after-discovered evidence was offered upon the subject of notice, the court below declined to grant a new trial. The defendant’s deposition was to the effect that he had recently found, in one of the drawers of his desk, a notice of protest partially describing the note in suit, which was addressed to H. N. Gitt, the other endorser; that a clerk usually received and opened all the mail which arrived at his office, and that he, the defendant, had no recollection of having previously seen the notice in question. It is contended this testimony was sufficient to justify an inference that, by mistake, the notification intended for the defendant had been sent to Mr. Gitt and the former had received the latter’s notice; that is to say, the notices had become confused so that each of the two endorsers received the one intended for the other. If such were the fact, under our recent decision in Marshall v. Sonneman, 216 Pa. 65, it might be sufficient to relieve the appellant from liability; but we do not feel at all convinced the testimony would justify the inference contended for. It is just as possible, since Mr. Gitt claimed that, between them, Mr. Delone was the real debtor, the former transmitted his notice to the latter’s office, and, thereby, the appellant received both notifica
The remaining three assignments of error concern an alleged contract between the plaintiff and H. N. Gitt, under which, after the maturity of the note, the latter confessed judgment to the former for the amount thereof. The defendant claimed in the court below that, at the time of such confession, it was agreed no execution would be issued against Mr. Gitt until judgment was first secured against the defendant; that the latter, in ignorance of this agreement, told the president and two directors of the plaintiff bank “specifically of property of Gift’s, and asked (them) to proceed upon the judgment which the bank held against H. N. Gitt, principal payor of the note in suit, by attachment, informing the (president) that the property......indicated......was sufficient to pay the note”; that, after discussing the matter, the officials of the bank “concluded they would not proceed by attachment as demanded,” because of their agreement with Mr. Gitt, and so informed the defendant. On this appeal, the defendant contends that the uncontradicted testimony in the case established the agreement in question as a binding contract, that the effect of this was the grant of an extension of time to Mr. Gitt, and that, in view of this extension, the notice to proceed by execution against the latter was sufficient to relieve him, the defendant, from liability. On the other
Two of the assignments which we are now considering (the third and fourth) complain of rulings on evidence relating to the matters referred to in the last paragraph, and indicate the refusal of certain offers; but the record shows that, while the testimony in relation to the demand and refusal to issue execution against Mr. Gitt was first excluded, yet, subsequently, full opportunity was afforded the defendant to prove the alleged contract for the postponement of such execution. The sixth and last assignment covers an excerpt from the charge; it appears that, after referring to the evidence concerning this so-called contract, the trial judge said to the jury: “You will take these things into consideration, and find out from that evidence — from the preponderance of the evidence — whether or not that contract made at that time between the president and the attorney of the .bank and Mr. Gitt amounted to just taking a judgment note and reserving its, the bank’s, right to proceed against Delone (the defendant), or whether it amounted, in fact, to an extension of time to Mr. Gitt.......Now, if you find that the latter was the fact, and that......the real intention, or compact,......amounted to a general understanding between all parties that they were to extend the time of payment of this present note as against Gitt, in consideration of his giving the judgment, and that the defendant knew nothing of that at that time, and did not give his assent, then you would be justified in finding a verdict for the defendant; but, if, on the other hand, you find that the result of that contract,...... was nothing more than a promise to Gitt that they would take his judgment, but that they would not release their hold upon Delone, or their right to proceed against Delone, then the contention of the defendant will not pre
In disposing of the questions raised by these three assignments, it is well to have the relevant facts in mind. To start with, the note in suit is dated July 3, 1913, payable two months thereafter to the order of H. N. Gitt, and signed by “Stine & Gitt”; it appears to have been endorsed first by O. J. Delone (the defendant), and then by H. N. Gitt. The testimony on the subject of the alleged agreement was given by Mr. Zouck, the president of the bank, Mr. Neff, counsel for the bank, and Mr. Gitt, himself. The first of these witnesses stated that, when Mr. Gitt confessed judgment, it was “understood” the bank would sue Mr. Delone and get judgment against him before it “issued execution against any of them”; but, immediately after making these statements, Mr. Zouck said it was Mr. Neff, and not he, who acted for the bank at the time of the arrangement with Mr. Gitt; that he did not “exactly know what Mr. Gitt first said” on that occasion, and could not tell what Mr. Neff asked the latter; that, as near as he could remember, in the end Mr. Gitt said, “I will sign, or confess judgment, with a distinct understanding that you sue Mr. Delone and get judgment against him,” and that these words expressed all the witness could recollect about the matter. Mr. Neff testified that Mr. Gitt had previously promised to confess judgment to the bank, and that, when they called upon him on the day in question, the witness asked “If he was ready to make good his word,” and Mr. Gitt replied, “I am, on one condition......, it must be expressly understood that the bank will sue Delone,” to which Mr. Neff replied, “We propose to sue Delone at once, if he does not pay.” Mr. Neff further stated that, while Mr. Gitt. said Mr. Delone was the real debtor, yet, he admitted “his (own) personal liability” to the bank. Finally, Mr. Gitt gave this version: “Mr. Zouck and Mr. Neff came tp my office, and Mr. Neff said, ‘Are you going to make your word good?’ and. I said,
Article VIII, Section 120, of the Act of 1901, supra, paragraph 6, provides that a person secondarily liable on a negotiable instrument is discharged “by any agreement binding upon the holder to extend the time of payment or to postpone the holder’s right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved.” In connection with the contentions already stated, the appellant claims that the testimony above quoted shows an agreement such as contemplated by this act, that he occupied the position of a person secondarily liable on the note in suit, and that such agreement was without his assent or any “express” reservation of recourse against him. The difficulties with these contentions are manifold. To begin with, there is no testimony to show whether Stine and Gitt, the makers of the note, were a firm, a limited partnership, or a corporation. Next, although Mr. Gitt may have been the Gitt of “Stine & Gitt,” yet he was also the payee of the note, and appears thereon as an endorser after Mr. Delone. In other words, the defendant appears on this instrument as an irregular endorser; and counsel for the plaintiff states, without challenge, that, in point
We say the evidence was insufficient, for Mr. Zouck was the only witness who stated there was any understanding as to postponing execution against Mr. Gitt, and he, immediately thereafter, not only frankly admitted his uncertainty on that point, but, in fact, subsequently confined his testimony to an assertion that all he heard was an offer by Mr. Gitt to confess judgment on the single understanding that judgment should likewise be secured against Mr. Delone. The other two witnesses who were present at the making of the alleged contract said nothing whatever upon the subject of de
The last point which requires consideration concerns' ■ the appellant’s rejected offer to show that he informed the bank of assets belonging to Mr. Gitt and demanded it take them by attachment execution on the judgment against the latter. This offer was refused by the trial
The Act of May 14, 1874, P. L. 157, particularly provides that sureties shall not be discharged from liability by reason of notice to the creditor to collect the amount
The judgment is affirmed.