Smith v. Wachob

179 Pa. 260 | Pa. | 1897

Opinion by

Mr. Justice Fell,

This appeal is from the order of the court of common pleas discharging a rule to open a judgment. The proceeding was irregular, and the application was without merit on the facts-The judgment was by confession, and' was entered in January, 1894. A rule to show cause why it should not be opened as to the defendant, Hine, who is the appellant here, was made absolute in June, 1894, and the issue was limited to the inquiry whether he had signed the note. There had been three trials of this issue, and at the last trial the verdict was against him. A rule for a new trial had been discharged, but judgment had not been entered on the verdict when the second application to open the judgment was made. This application was to open a judgment which was open, and as to which an issue had been framed and a verdict rendered. A motion for a reargument or to rescind the' order discharging the rule for a new trial and to enlarge the issue would have opened the way for an application for the relief sought.

But had the proceeding been regular the relief could not have been granted. The new ground of defense set up was known to the defendant at the time of the second trial. It is alleged in the petition that it was developed at that trial by cross-examination of the plaintiff. No effort was made to take advantage of it then, or at the next trial, which took place six months later. It was not a new ground of defense based on after-discovered evidence, and it was not a ground of defense at all.

Want of consideration is not a defense in an action on an accommodation note in the hands of a third parly who has taken it as collateral security for an antecedent debt. The maker or indorser of accommodation paper may defend on the ground of fraud in the procurement or use of the note, and in this respect it is governed by the same rules that apply to commercial paper generally, but he cannot set up as a defense that it was given without consideration and pledged for a preexisting debt. The decision in Royer v. Keystone National Bank, 83 Pa. 248, is in harmony with the rule stated in Lord v. Ocean Bank, 20 Pa. 384, and numerous other cases, that accommodation paper is a loan of the maker’s credit without restriction' as to the manner of its use. The syllabus in that case may be misleading, as it states the rule broadly, and without reference to the facts of the case. It does not appear from the report of the case that the note was an accommodation note, but it does appear that it was given for a specific purpose, and fraudulently used by the payee, and the decision is distinctly based upon that ground. See Carpenter v. Bank, 106 Pa. 170.

The order of the court is affirmed at the cost of the appellant.