47 Pa. Super. 282 | Pa. Super. Ct. | 1911
Opinion by
This was an action of assumpsit upon a negotiable promissory note, for $1,000, payable ninety days after date, drawn by George H. Shickler, the defendant, to the order of E. Lissberger, and indorsed by the latter to Louis Meyer, the plaintiff. The defendant aveirred, in his affidavit of defense, that an agreement was entered into between the defendant and Lissberger, at the time the note was given, whereby the note was to become null and void and to be returned to the defendant if a certain condition was not fulfilled; that the condition was not fulfilled, and, therefore, the note became null and void; and that the plaintiff had notice of the facts when he took the note from Lissberger.
On the trial of the case the plaintiff testified, in chief, that a few days before the maturity of the note he loaned Lissberger $1,000; that the latter indorsed the note to him as security; and that the money had not been repaid. On cross-examination, he testified that Lissberger did not inform him, and that he did not know that Lissberger had a collateral agreement affecting the note. The plaintiff then rested. Whereupon the defendant made offers to prove the facts averred in his affidavit of defense, excepting the fact of notice to plaintiff. The court having rejected these offers, the defendant called Lissberger as a witness on his behalf, and elicited from him the testi- ■ mony that he indorsed the note to the plaintiff a few days before maturity, and received therefor; from the plaintiff, $1,000, which he had not repaid, and that he had not informed the plaintiff of the agreement between him and the defendant. The court gave binding instructions for the plaintiff.
1. For present purposes we must assume that the defendant could have proved to the satisfaction of the
2. It is insisted that, as the burden of proving that the plaintiff was holder in due course was on him, and as he relied solely on oral testimony, it was the exclusive province of the jury to determine whether the fact was established. In support of this contention, counsel cites Second Nat. Bank of Pittsburg v. Hoffman, 229 Pa. 429; Harlow v. Homestead Boro., 194 Pa. 57; Bartlett v. Rothschild, 214 Pa. 421; Fry v. National Glass Co., 219 Pa. 514. The principle applied in these and similar cases is well illustrated by the case of Second Nat. Bank v. Hoffman, 229 Pa. 429. There, the bank was called upon to show, affirmatively, that it had no notice of the fraud when it took the note in good faith and for value; and whether it had so taken the paper depended entirely upon the testimony of its cashier. Although his testimony was uncontradicted, the court held that it was not a case for binding direction, but that the credibility of the witness, particularly as he
All the assignments of error are overruled, and the judgment is affirmed.