First National Bank v. First National Bank , 114 Pa. 1 ( 1886 )

Mr. Justice Clark

delivered the opinion of the Court,

This action is'brought by the First National Bank of Williamsport, against the First -National Bank of DuBois, to recover the amount of a promissory note, made by Simon & Postlethwaite, to the order of A. D. Lundy, dated April 2d, 1884, at three months, for $376.98, and payable at the First National Bank of DuBois. The note was endorsed by A. D. Lundy, and A. D. Lundy & Co., and discounted by the First National .Bank of Williamsport.

It is alleged, on part of the plaintiffs below, that on the 14th June, 1884, two checks drawn on the DuBois bank, one for $32.25, the other for $137.85, were, by the bank at Williams-port, enclosed in a letter and forwarded to the DuBois bank for payment, and that in the same letter the note in question was also enclosed for collection. The letter containing the enclosures was in a few days returned to the Williamsport bank, with a draft for $169.85, the amount of the two checks less 25 cents, the'costs of the collection.

At the maturity of the note, no presentment or protest for non payment was made, and the endorsers, who are admittedly good, were thereby discharged; and the makers being insolvent, the note was rendered worthless to the holders. The defendants below deny that the note was enclosed in the letter of 14th June, 1884, and maintain that they never undertook or were charged with its collection. The letter referred to was given in evidence at the trial, and was then in the following form:—

J. E. Long, Esq., Cashier — Dear Sir: Your favor of the First National Bank, of Williamsport, Pa., June 11th, 1884. You, For Pet’s. 32.25 137.85 For Collection: Simon & P. 376.98

The pencil figures were added in the DuBois bank, and the letters, O. K., were written upon it after its return to Williamsport; the balance of the written portions of the letter is in the handwriting of W. P. Harris, the clerk in the Williams-port bank, who it is alleged made up the remittance.

The first three assignments of error are to the admission of the depositions of W. H. Sloan, cashier, and Charles D. Campbell and W. P. Harris, clerks, of the FirstNational Bank of Williamsport. In their depositions the witnesses refer to the checks enclosed in the letter as stated, and to certain entries alleged to have been made in the books of the bank at Williamsport, at the time the original letter, with its enclosures, was forwarded by mail to DuBois. The objection was, that the books and papers themselves should have been produced at the trial, and after identification, should have been submitted. to the inspection of the jury; that the witnesses should not have been allowed to extract certain entries from the books and embody them in their testimony, and that the depositions were thereby rendered inadmissible in evidence.

It is difficult to see upon what grounds it was important to produce the checks; the fact that they were enclosed in the exhibit, “A.,” to the DuBois bank for collection, and that a draft for the proceeds was returned with it, is admitted on all hands. We are aware of no rule of law requiring the production of papers, which, in the nature of the case, are immaterial, can have no connection with the matter in issue, and are incidentally referred to by the witnesses only as part of the history of the transaction.

It is not a valid objection to a deposition, that the witness in his testimony refers to a cotemporaneous paper, book, or memorandum, made by himself and not in evidence, if the reference be made as a means of refreshing his memory, or as enabling him to speak with accuracy on the subject matter under investigation. A witness, in fixing the date of a given transaction, rhay refer to a book or diary to refresh his recollection ; he may state that the entries of events were made therein at the time of their occurrence, respectiveljq and that he is enabled thereby to fix with accuracy the date in question ; but if objected to, he would not be permitted to read the entry in evidence, excepting perhaps upon cross-examination. It follows, of course, that the book or diary need not be produced for the inspection of the jury.

It was competent for the cashier and clerks of the Williams-port Bank to refresh their recollection by a reference to their books, and having testified to the facts in issue, it was not improper, we think, for them to refer to the book entries made by them, respectively, at the time of the transactions, to explain the general method of conducting their business, and as exhibiting their opportunities for knowledge of the matters in question; and, for this purpose, it was not necessary, in connection with the depositions, that the books should be produced for the inspection of the jury. The suit is not brought upon the book charges, nor were the books relied upon as books of original entry, or referred to as such; indeed, the books themselves were not offered in evidence at all, either at the taking of the depositions or at the trial.’ The best proof, of which the case appears to have been susceptible, was the evidence of the bank officers themselves; the books were but secondary evidence of the facts alleged. But whilst it was competent for the witnesses named to explain the course of their business, to state that entries in the regular course of business were made of this transaction at the time, and, by reference to the books, to refresh their recollection, it was not competent, we think, in this oblique way, to introduce the entries themselves. If the books, supported by the oath of those who made them, were conceived to he evidence, they should have been offered, and upon proper identification produced at the trial.

It is conceded in the argument that if thé memorandum, “ Simon & P. — $376.98,” was in fact written upon the letter, exhibit “A.,” when received at DuBois, and the note was not found enclosed therein, it was the duty of the DuBois bank to notify the Williamsport bank of the fact. This neglect of the DuBois bank to give notice in such case, was, we think, the equivalent, in the first instance, of an admission that the note was received ; this neglect was of course open to explanation, but unexplained; it was, as the court said, “almost conclusive that the DuBois bank had lost the note.” Whether the memorandum was made before the remittance to DuBois, and if so, whether the failure to give notice of the fact was satisfactorily explained, were, under all the evidence questions for the jury. Mr. Harris testifies that the exhibit “A.,” with the exception of the “O. K.” and the pencil figuring, is all in his handwriting. Pie does not say in terms that it was all written at the time, but he states fully his method of doing business, and the fair inference is, in the absence of proof to the contrary, that it was so written. We are not to presume or to infer a fraud or a forgery without proof. W. H. Sloan, the cashier, testifies that he directed the remittance of the note and checks to be made, and that on the 14th June, 1884, he receive an envelope by mail, in which he found the exhibit “A.,” with a draft for $169.85, covering the amount of the checks, on the DuBois bank. He does not say that the memorandum of the note was then written upon it, but as the witness is supposed to speak of the paper as it was exhibited to him on the stand, in the absence of any suggestion of the witness to the contrary, this is the reasonable presumption as to his meaning. The testimony on these points is certainly not as-full as its importance would seem to require; it is meagre in details, and to some extent, on this account, unsatisfactory. Sufficient was shown, however, to send the case to the jury. When there is evidence on part of the plaintiff which, taken alone, would justify an inference of the disputed facts, the ■ question is for the jury: Howard Express Co. v. Wile, 14 P. F. S., 205 ; and in civil cases, the facts are to be determined by the weight of the evidence.

We are of opinion that the sixth assignment of error must be sustained. The $100 note matured on the 23d June, 1884, the note, now in question, for $376.98, on the 5th July following. Mr. Arnold testifies tlmt the bank.gave their advance notices, from one to two weeks before the notes matured. Mr. Simon says that he removed to Big Run on the 14th June, and that he received a notice very soon after. He does not pretend to say upon which note the notice was given ; he did not read it; lie knew it was a notice from the bank, but as he knew he was unable to pay, he gave it no attention. Now this notice was just as likely to be upon the one note as the other. There was literally no evidence from which the jury could have inferred that the notice was upon the note for $376.98; and it was plain error to submit a question of fact, which was conclusive in the case, to be determined upon mere conjecture.

The judgment is reversed, and a venire facias de novo awarded.