251 Pa. 536 | Pa. | 1916
Opinion by
This is an action of assumpsit by the holder against the endorser of a promissory note. It is between the same parties and arises out of a state of facts similar to those in the case in which an opinion is filed herewith. In that case the action was against the defendant’s intestate, Walton, on two promissory notes made and endorsed by him, and in this case the action is against him on a promissory note on which he was an endorser. In both cases the defense was that Walton was an accommodation endorser and that at the time the endorsements were made he was mentally deficient or insane. The cases were tried together and submitted to the jury in one charge by the learned trial judge. Verdicts were rendered for the plaintiff in each case, and a new trial was refused in the action brought on the two notes but was granted in the action on the one note, and from the order granting the new trial this appeal was taken.
The learned trial judge submitted to the jury to determine whether Walton endorsed the note for the accommodation of Scully, Painter and Beech, and instructed them that if he did so and was sane at the time, the plaintiff could recover, but if he was so mentally defective as to be unable to appreciate the nature and
We are not disposed to reverse the court below, not that we intend to decide whether under the facts of this case the value of the stock at the date of the trial or of its delivery to Walton or another date must determine the consideration or benefit received by him, but that the court did not manifestly abuse its discretion in granting a new trial because the learned judge erred in his instructions to the jury that the value of the stock should be as of the date of its delivery to Walton. This will depend upon all the facts affecting the question, not the least important of which are the provisions in the alleged collateral note, if any, as to the stock deposited with it. It is difficult to determine from the manner in
The note given by the firm to Walton was not produced upon the trial of the cause, nor did its provisions relative to the collateral deposited with it clearly appear from the evidence. The two so-called collateral notes in the other case provided that the owner had the right to call for additional security should there be a decline in the market, and on failure to respond, the obligation was payable without demand or notice, with full power to sell the stock. Was there such a provision in the note given by the firm to Walton to secure the note in suit in this case? If this note was given simply as collateral to secure Walton for his endorsement, what power or
In his opinion, the learned judge below called attention to the fact that there is a distinction between the principles of law applicable to the two suits, and we think it was a mistake to try them together. In the present case the issues do not seem to have been clearly defined, nor was the attention of the jury adequately directed to the evidence bearing upon the vital questions in the case. The record discloses many exceptions taken by counsel on both sides and which, we are satisfied, would have been far less in number had the case been tried by itself. If this appeal was sustained the probabilities are that we would have the case brought here by the present appellee. We think that in justice to both parties the case should be tried again in the court below and the facts fully developed, so that it may be considered by the court and jury clear of any confusion necessarily arising from it having been tried with the other case. In the present state of the record, we do not think it expedient to indicate our views as to the date when the collateral should be valued as that will
We have no doubt of our power to entertain an appeal from an order granting a new trial: Allen v. Sawyer, 2 P. & W. 325; Stauffer v. Reading, 206 Pa. 479; Commonwealth v. Gabor, 209 Pa. 201. Of course, this power is to be exercised only in clear cases of an abuse of discretion on the part of the trial court. “The granting or refusing of a motion for a new trial,” says our Brother Potter in the recent case of Mifflintown Bank v. New Kensington Bank, 247 Pa. 40, 43, “is so largely a matter of discretion in the court below, that we will not attempt to review its exercise, except in a clear case of abuse of that discretion. In the present case the ques.tions raised by the motion for a new trial, were questions of law, and in disposing of them, there was no abuse of discretion whatever.” This is the doctrine of all our cases. The court can abuse its discretionary power as to the law as well as to the facts in passing upon an application for a new trial, and when a new trial is based on a plain and palpable error of law applicable to the facts of the case, it is such an abuse of discretion as will warrant a reversal. A party has the right to have his case heard and determined only once on the facts and the law applicable thereto, but when it has been decided by the court of first instance that he has not had such a trial, the granting of a retrial will not be reversed unless reversible error in fact Or law clearly appears to the appellate court.
The order of the court below granting a new trial is affirmed.