Cook v. Forker , 193 Pa. 461 ( 1899 )

Opinion by

Mr. Justice Mitchell,

The original statement on the promissory notes having been amended, the only form of the action with which we are concerned is for money had and received.

Certain notes of one Weston were discounted by plaintiffs on Sunday, and a check for the proceeds given by plaintiffs to defendant on the same day, but dated as of the day following. The defendant indorsed the check on the Sunday it was given, but the money was drawn on it by the indorsees on the following Wednesday. This is the money had and received which is the cause of action declared upon in the amended statement. The court properly held that there could be no recovery on the note, but the action for the money stands on different ground. As to it the contract was not complete or executed on Sunday. Its object on the part of the defendant was to obtain the money on the discounted notes before their maturity, and it was not carried out until the money was obtained. The check in the mean time was merely a part of the incomplete Sunday agreement, and as such either party could have refused to go further with it. But when the holder presented and the plaintiff paid it both parties ratified and reaffirmed the transaction with all its consequences. This was done on a legal day, and made a legal and binding loan of the money.

The weight of the authorities is to this effect: Daniel on Negotiable Instruments, sec. 69; Adams v. Gay, 19 Vt. 358.

Contracts made on Sunday are not void in the sense that they do not admit of ratification, though so long as they are executor}’ the law will refuse to enforce them: Chestnut v. Harbaugh, 78 Pa. 473 ; and acts of ratification will make them new contracts which parties will be bound to perform : Uhler v. Applegate, 26 Pa. 140. It was accordingly held in the latter case that an agreement made on Sunday to extend the time of payment of a note, in consideration of the anticipation of part of the amount, became binding by the'agreed prepayment on a legal day, Chief Justice Lewis saying, “ It is not the intention of the law that its regard for the Sabbath day shall be made the means of perpetrating a fraud.” So in Whitmire v. Montgomery, 165 Pa. 253, a note made. and delivered on Sunday was held to be ratified and made good by a subsequent payment of interest on it.

The other grounds of defense set out in the affidavits are equally insufficient. Defendant avers that the notes were not discounted for him, and that he received no part of the proceeds of the check. But the check was drawn to his order and in-L dorsed by him. Payment to his order was payment to him. If he had drawn the money himself and sent it to his principals he could not have denied the receipt of the money, and what he did was the same in substance and effect. The fact that he was acting as agent for other parties, and was so known by the plaintiffs, is not inconsistent with his assumption of individual liability. His indorsement of the notes and the check imported such liability, which could not be contradicted by mere assertion of agency (Ziegler v. McFarland, 147 Pa. 607), and there is no other denial.

The discount of the notes at the rate of ten per cent per annum was not usurious. They were the notes of one Weston discounted by plaintiffs for defendant, or, in the extreme view, for his principals, the Pittsburg Vehicle and Harness Company. Under such circumstances a banker may purchase the notes at any agreed rate: Gaul v. Willis, 26 Pa. 259; Moore v. Baird, 30 Pa. 138.

The allegation that no notice of protest was received was not sufficient. The rule of commercial law in such cases is the exception in which the requirement is, not that notice shall be received, but only that it shall be sent: Weakly v. Bell, 9 Watts, 273, 279; Daniel on Negotiable Instruments, sec. 1021. The proper form of affidavit is, therefore, that the defendant is informed, believes and expects to be able to prove that no notice was sent, and, even if not in that form, it should at least in substance lay ground for inference that none was sent.

The affidavits were insufficient, and judgment should have been entered for plaintiffs.

Order refusing judgment reversed, and judgment directed to be entered for plaintiffs unless other legal or equitable ground be shown why such judgment should not be entered.