89 Pa. 328 | Pa. | 1879
delivered the opinion of .the court, May 5th 1879.
•Pour notes drawn by William Grim, one on the 16th of June 1870, and the others on different dates in the year 1872, were discounted by the Macungie Savings Bank. They were renewed from time to time until January 1875. Levi S. Hottenstein, the defendant, was the accommodation endorser of the four notes throughout the period during which they were renewed. At the close of the year 1874, or in the beginning of 1875, negotiations were entered into by the parties which resulted in the discounting by the bank of a note for $2100 drawn by Hottenstein and endorsed by Henry Brobst. The four notes of Grim were given up to Hottenstein, and are in his hands. The new note was renewed at intervals until the 30th of April 1877, when the last of the series on which this suit was brought was given. As part of the transaction, a mortgage by Grim to Hottenstein for $2100 was put in evidence. Hottenstein testified, however, that he had no knowledge of its existence until the following summer. He then took it and holds it now. Usurious interest had been demanded and received by the bank not only on the series of notes drawn by Hottenstein and endorsed by Brobst, but on the series of Grim’s notes, which Hottenstein had endorsed. The jury were instructed on the trial to give credit to the defendant for the excess of interest, paid both by Grim and Hottenstein.
Was the defendant entitled to allowance for the usurious interest Grim had paid ? If the question had been submitted to the jury they could scarcely have failed to find that the. evidence made out a case of novation — the substitution of a new draft for an old one. The bank’s claim against Grim was extinguished when his notes were surrendered to Hottenstein. The new note could not have been received as a collateral security, for there was no surviving debt to secure. The question of merger could not arise, for that takes place only where the debt is one, and the parties to the securities are identical: Jones v. Johnson, 3 W. & S. 276. Throughout the opinion in Campbell v. Sloan, 12 P. F. Smith 481, care was taken to confine the rule that the vicious element in a usurious contract survives in all its transmutations to cases in which the obligor or promisor remains the same. It was said that no payment by a changed form of security can be bona fide “ by the same borrower to the same lender, even though it may be strengthened by the engagement of a new surety or guarantor.” As to all essential points involved in this controversy, the defendant stands in precisely the position in which Andrews stood in Bly v. The Second National Bank of Titusville, 29 P. F. Smith 453. Andrews had been the accommodation endorser of a'series of notes drawn by the Climax Mower and Reaper Company, in the discount and renewal of which the company had paid usurious interest to the bank. In
Judgment reversed, and venire facias de novo awarded.
