Kuhns v. Gettysburg National Bank, 68 Pa. 445

Kuhns v. Gettysburg National Bank

68 Pa. 445 | Pa. | 1871

The opinion of the court was delivered,

by Sharswood, J.

When this case was here before on a former writ of error (12 P. F. Smith 88), as it appeared upon the evidence, it was an attempt to make the bank liable upon the mere fact that it waá the holder and had received the amount of a draft drawn by the order and for account of the plaintiff in favor of the bank. It was clearly shown by authority that such an action could not be sustained; that the presumption was that the draft was taken either in payment of a debt or that cash was given for it at the time it was received. The presumption resting on the usual course of transactions of this nature was in favor of the defendants, and stabit presumptio. donee probetur in eontrarium. There was no fact or circumstance which threw any suspicion on the transaction — that the money or value for it had not been paid. *448Rut the evidence on the second trial was entirely different. Captain Norris, to whom Colonel Lawler testified that he- had sent the draft by mail, although examined as a witness on the former trial, was not asked whether he had ever received it. At all-events it did not so appear upon the record. But as we have it now, he testified that he had never received it. From his evidence and that of Colonel Lawler, the jury might well infer, especially in connection with the testimony of the plaintiff himself, that it had been lost or stolen from the mail or post-office. This fact, if believed by the jury, shifted the onus, and made it incumbent on the bank to prove value and bona fides. It may be difficult to do so, and so it may be in the case of any holder suing the drawer or maker of negotiable paper. Yet nothing is. better settled than that upon proof of the loss or larceny of negotiable paper the holder must affirmatively show that he took it in the usual course of business for value. This draft is in all respects the same as if it had been drawn by Kuhns himself on the assistant treasurer of the United States in favor of the Gettysburg National Bank. Suppose then it had been dishonored, and suit had been instituted by the bank against the drawer. Surely upon proof by the defendant that the draft had been lost, stolen or obtained from him fraudulently, the onus, would have been thrown upon the bank to have given some evidence of value. It is hardly necessary to refer to the long list of cases in this court which establish this rule: Holme v. Karsper, 5 Binn. 469; Beltzhoover v. Blackstock, 3 Watts 26; Knight v. Pugh, 4 W. & S. 448; Brown v. Street, 6 Id. 221; Albrecht v. Strimpler, 7 Barr 476. Many others might be cited. If a party receives a bill from a finder or a thief, or one who has fraudulently acquired it, and obtains the money on it, he is liable to an action for money had and received to the use of the real owner, unless he can show that, he took it for value in the usual course of business. The fact that the holder is a banker doing a very large business, and therefore that it is difficult for him to show the facts of this particular transaction among a great multitude of others, cannot change the rule of law, which is a salutary one. No point was made in the court below that it was necessary to show that notice had been given to the defendants before the trial that they would be called on to prove the consideration they had given for the draft. W e must assume that such notice had been given. It is not necessary to decide whether the rule as to notice applies. As this case goes back for another trial, it will be prudent for the plaintiff to give such notice, so as to obviate all question.

Judgment reversed, and venire facias de novo awarded.