53 Pa. Super. 179 | Pa. Super. Ct. | 1913
Opinion by
The plaintiff’s demand in this action of assumpsit was based on two separate and distinct transactions, one involving the sum of $500, and the other $600. As to the first, the plaintiff testified that one Edward B. Carr brought to him a check for $500, drawn by the defendant to the order of “Cash”; that plaintiff gave Carr the amount and deposited the check in bank; and that the check was subsequently returned to him unpaid, payment having been stopped by the maker. He testified that he cashed the check for the accommodation of Carr, that he had no relation with the defendant and did not know him in the transaction. Upon cross-examination he admitted that the transaction might have been with McQuay, as alleged in the statement of claim, and not with Carr. He testified positively that he paid cash for the check, but in depositions taken in another proceeding he testified that he gave his own check for it; but no such check was produced. It is also a circumstance of some significance that subsequently a settlement of other matters took place
The defendant’s version of the transaction, as brought out when he was called for cross-examination by the plaintiff, was, that one Coolidge brought to him the check of the Maryland Lumber Company for $500, payable to the defendant’s order, and stated that the plaintiff wanted his (defendant’s) check in exchange, and wanted it made payable to “Cash”; that thereupon he gave his check as requested, but subsequently stopped payment of it.
It being a proved and undisputed fact that the lumber company’s check, in exchange for which the defendant’s check was given, was not paid, but was returned to him protested, it is apparent that plaintiff could not recover the amount without proving to the satisfaction of the jury that he paid $500, on the faith of it. This fact depended on the plaintiff’s testimony. He was an interested witness, and sufficient reference has been made to his testimony to show that it was not so clear, convincing, and free from uncertainty as to warrant the court in declaring that the jury must accept it as verity. His credibility was fairly in issue, and, therefore, binding direction in his favor could not be given without invading the province of the jury: Second Nat. Bank of Pitts. v. Hoffman, 229 Pa. 429. See, also, opinion herewith filed in Cahill v. Phila. Rapid Transit Co., 52 Pa. Superior Ct. 561, and cases there cited. The second assignment is overruled.
The facts relative to the $600 transaction, briefly stated, are: that a check for $600, drawn by the Maryland Lumber Company to the order of the plaintiff, and indorsed by the latter, was brought to the defendant, and in exchange he gave his own check, payable to the order of
The fourth assignment is that the charge was inadequate and misleading and failed to clearly present the issues to be determined by the jury. This assignment is not sustained.
The judgment is affirmed.