10 Pa. Super. 54 | Pa. Super. Ct. | 1899
Opinion by
This was an action brought by an indorser of a negotiable promissory note, who had become the holder thereof, against a prior indorser. The sole question in controversy at the trial was whether, or not, the plaintiff had duly notified the defendant of the nonpayment and protest of the note. The plaintiff testified that he had forwarded the notice of the dishonor of the note by mail on the same day upon which it had been received by him. If this was true, he had done all that the law required of him in order to fix the liability of the defendant. But the plaintiff offered in evidence the affidavit o,f defense, which explicitly stated that the plaintiff had received the notice of protest on October 16, 1896, and had held it three days, until October 19, before mailing notice to the defendant. The affidavit of defense, having been offered by the plaintiff, was in evidence for all purposes, and if its averments were true the defendant did not have due notice of the dishonor of the note. The question thus presented was a mixed one involving the application of the law to disputed facts. It was for the court to instruct the jury as to how and when the plaintiff was required to give notice to a prior indorser, and it was for the jury to find the facts under the evidence. The court directed the jury to find a verdict in favor of the plaintiff, subject to the questions of law reserved, to which action of the court exception was then and there taken by the defendant. The court subsequently entered judgment in favor of plaintiff upon the verdict. The defendant appealed and assigns for error the entry of judgment in favor of plaintiff. If upon the face of the record the plaintiff was not'entitled to have judgment upon the questions reserved by the court then the judgment must be reversed.
The effect of the action of the court was to withdraw the facts entirely from the jury. If the facts were not in dispute the parties might have agreed upon them and put their admissions in writing upon the record, or if the court had stated the facts, upon which the questions of law were reserved, in the record, the parties would, in the absence of any exception, be held bound by the recital in the record. In either of these ways we would have had before us something definite to be determined, but when the whole subject is handed over to the court, with nothing decided, the case is in the same condition it was before
The burden was upon the plaintiff to establish by evidence that he had notified the prior indors,er. Whether there was any evidence which ought to be submitted to the jury was a question of law for the court; but if there was evidence to submit to the jury, then, it was for the jury alone to pass upon its sufficiency. The court reserved the whole case and undertook to pass upon the credibility of the witnesses, and the defendant then and there took an exception to the reservation. The reservation was manifestly bad, but none of the assignments of error refer to it. The only action of the court below which is here complained of is the entry of judgment in favor of plaintiff upon the verdict. The verdict was for plaintiff for a definite sum, and in the mere entry of the judgment thereon there was no error, unless upon some one of the questions of law reserved
Judgment reversed and venire facias de novo awarded.