Second National Bank v. Hoffman

233 Pa. 390 | Pa. | 1912

Opinion by

Mr. Justice Brown,

When this case was here before, at October Term, 1910, on appeal by the defendant from the judgment against him on the verdict directed for the plaintiff, a new trial was awarded, for the sole reason that the jury should have been permitted to determine whether the plaintiff had shown by the testimony of its cashier that it had taken the note in suit in good faith and for value, without any notice of the fraud which had been perpetrated by John M. McKee upon the defendant in procuring his indorsement of it: Second National Bank v. Hoffman, 229 Pa. 429. The facts there stated reappeared on the second trial and need not be repeated here, though we are called upon to again say that the note was unquestionably delivered to the bank in payment of the balance due on the old obligation, and not merely as collateral for a pre-existing debt.

We cannot agree with the statement of the learned trial judge, in his opinion refusing judgment for the plaintiff non obstante veredicto, that the testimony on the second trial upon the vital point in the case was substantially the same as on the former trial. On that trial the only person called by the plaintiff, to relieve itself of the burden upon it of showing that it had no knowledge, at the time it took the note, of McKee’s fraud upon the defendant, was its own cashier, and, under the rule as to parol testimony, it was held that his credibility was for the jury. He was the bank’s most active officer, and the jury might have found that he was “a witness deeply interested in the result of the suit, which was to determine whether his bank should be paid by Hoffman or lose what the McKees owed it.” He was called as a witness again on the second trial and testified substantially as he had testified before as to the bank’s ignorance of the fraud practiced by McKee upon the defendant; but on the last trial the plaintiff did not rely upon his testimony alone as to this. It conclusively appeared from the testimony of the defendant himself, and from that of McKee when on the stand as one of his witnesses, that the bank had no knowledge whatever of what had taken place between them at the time the defendant indorsed the note. The admission of the defendant was that neither he nor anyone for him had ever communicated with the bank, and McKee testified that he had never communicated to it the talk he had had with the defendant on the evening that the latter indorsed the note. It thus affirmatively appeared, from the defendant’s own admission and from the testimony of McKee, one of his witnesses, that the bank had no knowledge of the latter’s fraud upon the defendant, and it was, therefore, error in the court below to permit the jury to pass upon that question. It was not a disputed one after the defendant and McKee had testified. As a result of permitting the jury to treat it as such there followed a verdict not only perverse and clearly against the weight of the evidence, but in the face of testimony from which the only possible conclusion to have been drawn by honest minds was that the bank was utterly without knowledge of McKee’s fraud upon the defendant. Under the circumstances, the plaintiff’s fifth point should have been affirmed. Having failed to affirm it, the court subsequently should have entered judgment for the plaintiff upon the whole record non obstante veredicto: Dalmas v. Kemble, 215 Pa. 410; Bond v. Pennsylvania Railroad Company, 218 Pa. 34; Shannon v. McHenry, 219 Pa. 267. The tenth assignment of error is sustained and the record is remitted, with direction that judgment be entered for the plaintiff non obstante veredicto.