7 Pa. Super. 98 | Pa. Super. Ct. | 1898
Opinion by
The defendant applied to H. G. Lee, the local agent of the Anglo-American Building and Loan Association, for a loan of $1,800. The application was accepted. On June 4, 1894, before the association forwarded the money, Sallada obtained $1,000 from Lee, as a temporary loan, and gave him two judgment notes of $500 each as a security. On July 7, 1894, Lee had the check of the association for $1,476, payable to the order of Sallada, as part of the proposed loan, and at his invitation Sallada called on that day to get the check and the notes.
On the trial the court properly confined the parties to the questions raised by the issue framed in the order making the rule absolute, namely: whether the defendant had paid the notes upon which judgments were entered to H. G. Lee, the obligee, in ignorance of the fact that they had previously been assigned to C. C. Walker. The learned judge charged the jury that “ The case hinges entirely upon what took place between Lee and Sallada on the night of July 7. . . . The only question in controversy is whether the notes were paid by Sallada in ignorance of the fact that they had been assigned and were in the possession of and owned by Dr. Walker. . . . If before the payment was made, or was completed between these parties,
The appellant complains, first, the court erred in opening the judgments, because the application was supported by the oath of the defendant only, and that this was contradicted by the testimony of Lee, the legal plaintiff. It is true, the rule is well established that a judgment will not be opened on the unsupported testimony of the defendant alleging fraud in the procurement of the note, where this is opposed by the sworn testimony of the plaintiff. This principle has been enforced in many cases. But is the present a case to which this rule applies ? There is no denial here of the validity of the notes when given, or the good faith of the transaction in which they were given. The defense set up concedes the rectitude of the transaction and the genuineness of the notes; and relates wholly to a subsequent matter resting in parol, and in no way contradicting the written instruments.
As was said in Bank’s Appeal, 124 Pa. 337: “ This is not the case of the reformation of an instrument on the ground of fraud, accident or mistake; hence many of the authorities cited on behalf of the appellant do not apply. There was no attack upon the integrity of the judgment. It was merely a question of payment. In such case a chancellor might not require the same measure of proof as in a proceeding to reform the instrument. If, therefore, there was evidence enough to submit to the jury, and to sustain their verdict, it was not error to submit it, and to enter judgment on said verdict. The learned judge, acting as a chancellor, would probably have accepted the verdict had it gone either way.”
In that case the application to open, and the subsequent oral testimony in support of it on the trial, was principally that of the defendant himself.
In the present case the sole defense was payment, and the evidence relating to this was the testimony of Lee and of Sallada. The payment of the notes was admitted, and is expressly acknowledged in the receipt. The only question in the case was
Under this state of facts the more stringent rule contended for by the plaintiff would not apply so as to preclude a judicial inquiry. “ While a written agreement cannot be set aside on the testimony of one party when contradicted by the testimony of the other party, yet where there are corroborating circumstances, or circumstances from which inferences may be drawn corroborative of the contemporaneous parol agreement, the question should be submitted to the jury:” Stockwell v. Webster, 160 Pa. 473; Smith v. Harvey, 4 Pa. Superior Ct. 377. The first specification of error is overruled.
Since the decision in Frantz v. Brown, 1 P. & W. 257, it has been the established law that “ the assignee of a bond is bound to inquire into every circumstance that might be set up against payment of any part of the debt, and having failed to do so he stands exactly in the place of the obligee.”
And it has also been uniformly held that the law casts upon the assignee of a bond the duty of notifying the obligor of the change of ownership in order to protect his rights thereto and prevent an extinguishment of the debt by payment to the obligee: Bury v. Hartman, 4 S. & R. 175; Hodgdon v. Naglee, 5 W. & S. 217. In Gaullagher v. Caldwell, 22 Pa. 300, Black, C. J. said: “It is impossible to conceive upon what principle of justice a debtor should be prejudiced by an assignment of which he knows nothing. If the party whose interest and duty it is to give him notice, so that he can regulate his conduct according to his new relations, make it a point to keep him ignorant, he should certainly not be compelled to suffer; since one man is not to'answer for the default of another. Down to the moment of notice, the debtor may do whatever he could legally have done if no assignment has been made. Any con
The assignment of errors is overruled, and the judgment is affirmed.