19 Pa. Super. 76 | Pa. Super. Ct. | 1902
Opinion by
The defendants did not, in the court below, deny that they had been liable to plaintiff, but asserted that the original liability had been extinguished by the acceptance of a new obligation. Howell was the principal and the National Surety Com pany was surely in a bond, under the condition of which they had become liable to the plaintiff. The plaintiff accepted from Howell, the principal debtor, upon account of the claim, a note made by Zane payable to the order of Howell and by him indorsed, due sixty days after date. Howell testified that the plaintiff had “ agreed to take the note in full settlement of that account.” The plaintiff categorically denied this statement, and said that the note had been received through the mail and that there had been no agreement or understanding that it should be received in payment of the original claim. This question of. fact was submitted by the learned judge of the court below to the jury, with instructions which were clear and adequate, and the jury having found in favor of the plaintiff, we must accept the question as determined adversely to the contention of the defendants : Holmes v. Briggs, 131 Pa. 233 ; Shepherd v. Busch, 154 Pa. 149; Collins v. Busch, 191 Pa. 549; Philadelphia v. Stewart, 195 Pa. 309. The defendants offered no testimony of any express agreement between the parties for an extension of time of payment of the original indebtedness, but the learned court also submitted the question of such extension to the jury, with instructions possibly more favorable to the defendant than the evidence warranted, saying : “ I may say further that if you find in the evidence anything which leads you to believe that the plaintiff here agreed to wait any time, to give to the defendant Howell any time
Howell, having testified that the plaintiff had agreed to accept the note of Zane in payment of the original claim, went further and said that the plaintiff never afterwards asked him to pay the account. “ After he received that note he never bothered me again for that account. Q. When did you first hear that he claimed anything at all of you ? A. Mr. Taylor or Mr. Smith, of the National Surety Company, wrote me a letter and informed me of the fact that he had sued the National Surety Company for the amount.” The witness, it is true, became very much confused in his cross-examination, but his admissions did not go to the full extent of conceding that the direct and absolute assertions made upon his examination in chief were untrue. We are of opinion that it was proper for the court to permit the plaintiff, in rebuttal, to offer the record of a proceeding in the court of common pleas, which established
The judgment is affirmed.