30 Pa. 527 | Pa. | 1858
The opinion of the court was delivered by
— There was nothing to prevent the supposed endorsers from testifying as witnesses. They were not parties to the spurious instruments in-fact or law. Ho proceeding to recover the money could have hurt them, and no judgments in these actions could have increased or diminished their liability, for it
It is necessary only to open a book on contracts, to find that even in the sale of an ordinary chattel, where on failure of consideration the purchaser rescinds the contract and brings suit to recover his money, he must place the seller where he found him, by returning the thing purchased. Nothing need be said of the difference between affirming the contract by suing on the warranty, and disaffirming it by going for a recovery on the count for money had and received, for these declarations contain that count. But it is scarcely fair to treat a promissory note as a chattel; for while it may, for some purposes, be bought and sold like a horse or a bag of wheat, it differs much from the common-run of chattels. It is worthless except as it represents the ability of somebody to pay it, and this may exist to-day and be gone tomorrow, and be revived on the third day, and, throughout the process, its value may depend wholly on the promptness of the holder. The notes in this suit contained a genuine name. For aught that appears, timely application to that party might have saved the debt, for others thought proper to obtain judgments and sell his property. At some stage of the business, the plaintiffs obtained knowledge of the forgery, for they brought the actions and put the fact on record. Why not inform the defendant of his risk, and give him a chance of escape by a direct blow at the maker ? What justice could there be in permitting a holder to hold on until the very close of the period of limitation, and then to spring a suit on the seller, when the genuine parties are dead and their estates gone ? Observe how useless the notes were to the plaintiffs, for the endorsements were links in their chain of title, and, as these were false, recovery at their suit against the maker was impossible; but, to the defendant, possession was vital, for his right of action against the maker or some other vendor was perfect. To permit the plaintiffs to keep both verdict and note would be manifestly unjust. If not entitled to a tender before suit, the defendant has no right to its return afterwards; and to send him on a circuitous chase after it, while the genuine parties are daily growing weaker, is not to be thought of, unless some stubborn principle of law demands it. How is this ?
Our Act of 5th April 1849 really accomplished little, for, long
In Pennsylvania, the law has been to some extent regulated by the decision made in 1803, in Ritchie v. Summers, 3 Yeates 543, and the subsequent decision of the Court of Errors and Appeals in the same case (ante 147-8), which I have seen in manuscript. When the Act of 1849 came to declare the law, nothing was said of the necessity of return or notice, but then nothing was said against it; and this part of the subject was left as it had been found. In the case of Roth v. Crissey (ante 145), decided at our last sitting in Philadelphia, the District Court of that city had put the case to the jury thus: — “ If this note were bought by plaintiffs of defendant, or sold for or on account of defendant, and it is not genuine, the plaintiffs can recover if they have pursued their remedy
On these authorities, and for these reasons, I think the purchaser of such a note has no business whatever to sit in judgment on its value, but is bound to return it, whatever its value. In this we do not all agree, and therefore the judgment of the court is, that notice of the forgery within a reasonable time after its discovery, and an offer to return the note, are necessary to the maintenance of an action for the recovery of the money, unless the note be shown to possess no value. Both points have been discussed and decided, because, though raised with unequal distinctness, both will necessarily be involved in the next trial.
Judgments reversed and a venire de novo awarded.
Strong, J., took no part in these cases, having been concerned, as counsel, in other cases turning on the same facts.
Thompson, J., dissented.