74 Pa. Super. 482 | Pa. Super. Ct. | 1920
Opinion by
The action was assumpsit by the endorsee of a check against the maker thereof. In his statement the plaintiff averred the defendant made and delivered his check to one Heilman, the payee therein named, and the latter regularly endorsed the same and delivered it to the plaintiff for value. The affidavit of defense made no denial of the execution and delivery of the check to the payee or of its endorsement by the latter and delivery to the plaintiff. The latter therefore became a holder of the check within the meaning of the statute to which we shall refer in a moment. The affidavit of defense proceeded with considerable detail to aver that the check had been procured from the maker by the payee by means of false and fraudulent representations and that, in violation of his agreement to return the same upon conditions in the affidavit specified, he had, in fraud of the defendant’s rights, undertaken to negotiate the check to the plaintiff. It further averred that the latter had knowledge of the infirmity of the title in the payee and therefore took the check subject to any defense which the maker could have made as against the payee. The plaintiff then filed a counter statement specifically denying any knowledge upon his part of any transaction between the maker and the payee which resulted in the execution and delivery of the check, averred in detail how he had paid full value for the same, and thus the issue of fact to be tried was fairly defined.
Upon the trial the plaintiff took the stand and testified as to the manner in which he had received the check and in which he had paid full value for the same. The check was then offered in evidence and admitted over the objection of the defendant and the plaintiff rested.
Passing for the moment some comparatively unimportant things, the defendant was called in his own behalf and his counsel then made a written offer to prove by him the entire transaction between himself and the payee which resulted in the execution and delivery of the check; and further that the plaintiff did not receive the check in due course of business nor for value but simply for collection, etc. The offer was objected to as incompetent, irrelevant and immaterial, as affecting the plaintiff, because there was nothing in the offer to show knowledge on the part of the plaintiff of the alleged conversations or facts set forth in the offer. The objection was sustained, the offer refused, and the testimony closed. Thereupon the learned trial judge directed the jury to find a verdict in favor of the plaintiff for the amount of the check. From the judgment entered on that verdict this appeal was taken.
We think an examination of the Act of 1901, and of the decisions that have followed it, will demonstrate that the learned trial judge fell into error in refusing the defendant’s offer. Section 52 of the Negotiable Instruments Act defines who is a holder in due course. Section 59 provides: “Every holder is deemed, prima facie, to be a holder in due course.” This first clause of the section creates, in favor of the holder, a valuable presumption of fact and thus makes it comparatively easy for him to establish a, prima facie case in his favor. But the section goes on as follows: “But when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he, or some person under whom he claims, acquired the title as holder in due course.” Until something is shown impairing or invalidating the title of the person who negotiated the instrument, the plaintiff holder may with safety rest upon the presumption created by the statute in his favor. But the language last
The able counsel for the appellee appears to have been convinced that the case at bar rather was ruled by the second case of Bank v. Hoffman, 233 Pa. 390, and our own case of Catasauqua National Bank v. Miller, 60 Pa. Superior Ct. 220. The latter case clearly followed the decision in the second Bank-Hoffman case precisely because of the reason that led the Supreme Court, in that case, to a different conclusion from that reached in the earlier decision. In the case at bar we fail to find anything in the testimony of the defendant which could be said to furnish the necessary admission in support of the plaintiff’s contention, the necessity of which was so clearly pointed out by the Supreme Court in the two cases referred to.
As the case must go back because of the basic error we have been discussing we shall but briefly refer to one or two other matters which are made the subjects of some of the assignments of error. The check was dated August 24, 1915, at the place of business of the defendant, which was not the place of residence either of the payee in the check or of the plaintiff. The amount of the cheek was $550. At the time the payee received the check he was indebted to the plaintiff for the balance of the purchase money on some real estate transaction in the sum of $450. On the 27th of August he offered the check in suit to the plaintiff in discharge of his debt of $450 with the understanding the plaintiff should give his check for the difference of $100. The plaintiff at first demurred to this but on the suggestion of the payee that he, the plaintiff, might hold the deed which was to close the transaction between them until he had deposited the check and ascertained it was good, the plaintiff accepted the check and on the same day deposited it in his own name in his bank in New Castle. The check was drawn on a bank in Ellwood City. There can be nothing in the contention that plaintiff was visited with knowledge of anything unusual in the transaction because, in the language of counsel, he accepted the cheek three days after it was due. In all ordinary cases a check is and is intended to be due the moment
There is one further assignment that should be noted. The defendant sought to elicit from the plaintiff on cross-examination something to support a contention that the plaintiff had brought this action against the maker, rather than against the endorser, at the solicitation of the latter because the endorser had indemnified, or offered to indemnify him against loss in case he failed to recover in an action against the maker, Assuming for the moment that to be the fact, we can discover no relevance it could have in determining the real issues involved. When the check was not paid, because payment had been stopped by the maker, the endorsee, the present plaintiff, had a cause of action either against the maker or against the endorser. He could sue either at his pleasure. If he could establish that he was a holder in due course, he was within his legal right in bringing an action against either maker or endorser and if he failed to recover in one he could with propriety pursue the other. Just what induced him to decide to first press his action against the maker we believe to be of no consequence and that the introduction into the trial of evidence on that subject could not reasonably have any other effect than to mislead the jury as to the real question to be determined by them.
For the reasons given the judgment must be reversed and the cause be tried again according to the lines laid down in this opinion.
Judgment reversed and a venire facias de novo awarded.