First National Bank v. McBride, 230 Pa. 261

First National Bank v. McBride

230 Pa. 261 | Pa. | 1911

Opinion by

Mr. Justice Stewart,

This was an action against an accommodation indorser. Judgment was rendered against the defendant for want of a sufficient affidavit of defense. Whether the affidavit was sufficiently responsive to the statement of the cause of action is the question. Except as the defendant was duly notified, in accordance with the requirements of the law, of presentment, demand and failure to pay, she was discharged from liability on the note. The affidavit distinctly denies personal service of notice, orally or otherwise. If it stopped here, its insufficiency would be apparent, for the reason that personal service is not required. • Notice of dishonor duly addressed, that is to say, addressed to the party to be served, and to the post office nearest his place of residence, or to the post office where he is accustomed to receive his letters, and deposited in the *264post office, is sufficient in law, notwithstanding any miscarriage in the mails. The plaintiff’s statement simply avers that “ the note was not paid at maturity, due presentment and demand having been made, and that the defendant had due and timely' notice of said nonpayment.” The certificate of the notary is made part of the statement. It certifies that the notary exhibited the note where payable, at the proper time, and demanded payment which was refused, the answer being “No funds, whereof I duly notified the endorser.” If it be allowed that such certificate of notice falls within the Act of December 14, 1854, P. L. (1855) 724, which makes the certificate of a notary prima facie evidence of the facts therein stated — a matter we do not now decide — for quite as much reason should it be held that the affidavit here filed meets all the requirements as to sufficiency. The former certifies that the indorser, this defendant, was' duly notified. This is but another way of saying that the notice was given in accordance with the requirements of law. But how was it given, in which of the two ways allowed by law, orally or by mailing? The certificate is silent as to this. Now if we turn to the affidavit we find that oral service is specifically denied; and equally explicit is the denial that notice of dishonor was sent in accordance with the requirements of law. These denials are followed by the positive averment that no notice was ever received. The averment in the original affidavit is, that if said note was protested the notice of the same was ndt sent in accordance with the law concerning notice of nonpayment. The denial was as specific as the certificate; and that is all a plaintiff has a right to require. Had the statement averred that the notice had been given in some particular way allowed by law, nothing but a specific denial of the fact alleged would have been sufficient to prevent judgment. To require more than this would be to put an indorser upon inquiry as to something determining his liability, of which the statement of the cause of action gave no notice, and which it would be next to *265impossible for him to discover. The case is closely par-allelled by that of McPherson v. Allegheny National Bank, 96 Pa. 136, the only variance being that in that case it does not appear that the statement was accompanied by a notary’s certificate. The variance is immaterial, for we are not here considering whether the certificate of the notary in this case falls within the provisions of the statute which makes the certificate prima facie evidence of the facts contained in it. That question will arise on the trial of the case. We have now but to regard the certificate as part of the plaintiff’s statement and judge of the sufficiency of the affidavit by its responsiveness. Speaking of the statement of the cause of action in the case referred to, Green, J., says, “It does not state when or in what manner it (notice of dishonor) was given, nor does it give any particulars of. the protest. Its averment of notice is in the most general language, this, if denied in the terms of the allegation, is sufficiently denied for the purpose of an affidavit of defense. The plaintiff in his affidavit says 'the defendant had due notice.’ The defendant in his affidavit, says ‘Due notice of nonpayment was not given to affiant.’ The substance of plaintiff’s allegation is that defendant had notice. The substance of defendant’s allegation is that no notice was sent to him, and he supplements this by a more specific denial than was really required, by saying that he never received any notice whatever until suit brought. This is a full denial, in the very terms of the plaintiff’s allegation, of the vital fact of notice. It put the plaintiff to proof of the notice before he can recover. It is difficult to see how the defendant could possibly have made more specific denial than he did. Had the plaintiff alleged that on a certain day named, a certain person, also named, had deposited in the proper post office a letter addressed to the defendant at his proper post office, containing a written or printed notice that the note had been presented for payment at the proper place and time and was not paid, it might well have been claimed that these facts *266must have been negatived by specific denial in the affidavit of defense. But without such averment it would be asldng the impossible to require such denial, since the defendant could not know that such facts were averred against him. The court below could not, and we certainly do not, know how the fact of notice is to be made out. How then in the face of the defendant’s denial can any judgment be rendered against him on the present state of the record.” We have quoted at length from the opinion so that the parallel as to the facts, and the applicability of the law as there stated, may clearly appear. The case of Zollner v. Moffitt, 222 Pa. 644, calls for no comment. Nothing there said conflicts in the slightest degree with the view here expressed. That case is sufficient authority in itself for our present ruling.

Judgment reversed and procedendo awarded.