65 Pa. 59 | Pa. | 1870
The opinion of the court was delivered, February 28th 1870, by
The first assignment of error is, that the court
Tbe second assignment of error is to tbe refusal of tbe court to charge as requested in tbe defendants’ fourth point, which was, that “ if the jury believe that there was nothing due to tbe plaintiff by tbe defendants at tbe time tbe note süed on was given, tbe plaintiff cannot recover in tbis action.” The plaintiff had given in evidence tbe note and there rested; but tbe subsequent evidence, both on the part of tbe defendants, and in rebuttal on tbe part of tbe plaintiff, placed before the jury tbe whole question, of what,
But we are of opinion that the learned judge below fell into an error in declining to charge as he was asked in the fifth point of the defendants, which forms the subject of the third assignment. That point was in effect, that if nothing was due on the note at the time it was given, the jury ought to allow nothing upon it in determining what amount may be due to the defendants. This point was evidently framed in reference to the claim of the defendants to a verdict in their favor under the plea of set-off, and so as not to appear to admit that anything was due to the plaintiff. But as far as the law was concerned, it mattered not whether the balance finally ascertained should be found in favor of the plaintiff or the defendant. The note was primá. facie evidence between the parties, but that was all. If it was without consideration, it]!,was unavailable as evidence of indebtedness. If, therefore, the defendants had proved to the satisfaction of the jury, that at the time the note was given nothing was due, they were bound to dismiss it from their consideration, and confine their attention to the question, whether any, and what amount, either party was entitled to upon a just settlement of the account, without regard to the note. This assignment of error is therefore sustained.
The fourth assignment is, that the court erred in declining to charge as requested in the defendants’ eighth point. This was in substance, that if the jury believed that a certain item in the defendants’ book to the credit of the plaintiff had been entered by their book-keeper without their knowledge or consent, they should disregard it altogether. The fact may have been very important as a question of evidence, to rebut the presumption arising from the entry, that the defendants had not known of it or consented to it; but if, notwithstanding there was proof that the item objected to was a proper entry to the plaintiff’s credit, it was entirely immaterial whether it had been made with the knowledge or consent of the defendants or not. The learned judge below therefore committed no error in declining to charge as requested in this point.
Judgment: reversed, and venire facias de novo awarded.