McKelvy v. Berry , 21 Pa. Super. 276 ( 1902 )

Opinion by

Beaver, J.,

The defendant was joint maker with his brother David in a promissory note, dated November 28,1894, payable on demand, to the order of the Columbia National Bank of Buffalo, for $400. It is not alleged that as against the bank, the original holder of the note, the defendant had any defense. The plaintiff claims that Lucien C. Jackson, to whom the bank assigned the note and by whom it was transferred to him, had all the rights of the original payee against the defendant. Whether, therefore, the proposition as contained in the second point of the defendant that “ the note in suit, payable on demand, without interest, was due forthwith, and an action thereon by the payee against the maker might have been brought and maintained the day following its date ” was altogether immaterial. Even if it were so, the relative rights and duties of the plaintiff and defendant would not be in any respect changed.

So also as to the third point that “ the note having been transferred six days after its date was overdue and dishonored, and the indorsee took it subject to any defense which the makers, or either of them, had at or before the time of the transfer against it.” There is no allegation that the defendant had any defense to the payment of the note in the hands of the bank. If, therefore, Jackson succeeded to the rights of the bank, by virtue of the transfer to him, the question became wholly immaterial. As was very properly said by the court, “ There is no evidence that the defendant had any defense to the note in the hands of the bank,” and, if the assignment to Jackson was bona fide and for a valuable consideration, he succeeded to all the rights which the bank had under the note.

There seems to be an underlying and unexpressed thought in the mind of the appellant that the rights of Jackson are the same as if the note had been paid by David Berry. This, however, does not appear in the points, and the fact as to whether or not the note was1 paid for David Berry by Jackson was left to the jury and found against the appellant and is, therefore, eliminated from the case, so far as our consideration of it is concerned.

The court also properly refused the defendant’s sixth point contained in the third assignment of error. We know of no law in Pennsylvania, and have not been referred to any, which requires the holder of a promissory note, payable on demand, even if the plaintiff or Jackson, through whom he claimed, knew that Peter Berry was surety for his brother, to made demand and proceed to collect the note, unless required so to do by the party alleging himself to be surety, if suit be brought within the statutory period required by the statute of limitations.

The offers made by the defendant, as contained in the fourth and fifth assignments of error, were properly rejected. If all the facts stated therein had been proved, they would have constituted no defense on the part of the defendant to the payment of the note.

The court permitted the pleadings to be amended, so that the fact of payment could be given in evidence, and the plaintiff was allowed to testify as to a conversation between himself and Jackson, after the assignment of the note to the latter, that the note had actually been paid by him at the request of the brother of defendant and that he would, therefore, have no further trouble in regard to it. The general charge of the court upon this subject was full and fair, and the jury instructed to find that, if payment was so made, it was a good defense, and that “ whether the note was paid and extinguished as against Peter or not would not make any difference, for the reason that, if Jackson so informed Peter, the tendency would be to lull him to sleep and from taking such measures to secure himself as he otherwise would.”

The main question in the case was whether the defendant’s or Jackson’s version of the conversation between them in reg ard to the note was the correct one. That question, with all the collateral facts relating thereto, was fairly submitted to the jury and their finding is justified by the evidence. The defendant presented all the relevant and material facts of his defense to the jury. There is nothing in the charge of the court in relation thereto concerning which he has good reason to complain. His points were properly answered and with the judgment entered upon a verdict, justified by all the evidence in the case, we cannot interfere.

Judgment affirmed.