First National Bank v. Tamaqua Manufacturing Co.

71 Pa. Super. 39 | Pa. Super. Ct. | 1919

Opinion bx

Williams, J.,

Plaintiff declared against defendant as endorser on a promissory note. The note was duly protested for nonpayment and the notary certified that defendant had been notified thereof. It appeared, however, that he later wrote to plaintiff a letter indicating he had not notified defendant. Subsequently plaintiff wrote to defendant asking payment of the note, and received the following reply: “We acknowledge receipt of your favor of the 15th inst., relative to note of Lorberry Coal Company, and in reply have to advise that we wrote these people some time ago in reference to this note but have not received satisfactory reply. We have again written them to-day, and if we do not hear from them within a few days we will arrange to adjust the matter with your bank.” There was evidence that the parties, thereafter, entered into an agreement relating to suing the prior endorsers on the note.

The court submitted to the jury, inter alia, the questions (1) whether defendant had notice of protest, and (2) whether, in the absence of notice, it had, by its subsequent conduct, waived the notice of dishonor. The jury found for plaintiff, judgment was entered, and defendant appealed.

Appellant complains of the action of the court in submitting the two questions to the jury.

(1) The certificate of the notary was prima facie evidence of notice to defendant, and anything contradicting it, in writing or otherwise, would raise a question of fact for the jury.

(2) The meaning of defendant’s letter, set forth above, was open to dispute; its interpretation was sought to be influenced by evidence of other transactions, and its effect was to be determined by the jury. If defendant had waived the notice its liability was clear: see Act of May 16,1901, P. L. 194, Sec. 109.

The assignments of error are overruled. The judgment is affirmed.