Forepaugh v. Baker , 10 Sadler 97 ( 1888 )

Opinion by

Mr. Justice Sterrett:

In this action by the holder against the makers of two negotiable notes the statement of plaintiff below, embodying everything that is required by the civil procedure act of May 25, 1887 (P. L. 271), presents a clear prima facie case in his favor. The only question is whether the court below erred in holding that neither of the material averments of fact contained therein is traversed or denied by the affidavit of defense.

We are clearly of opinion that it did not. The allegation that the notes were given to the payees “at their request, without any value or consideration whatever,” amounts to nothing, in the absence of an explicit denial that plaintiff was a bona fide holder for value without notice. The averment that defend-' ants believe the notes were transferred to Alfred G. Baker without full value, for the purpose of avoiding the defense “they claim to have against the payees, is wholly insufficient, in that it is entirely consistent with the fact that the indorsee and holder, without knowledge of any such purpose, gave value for the notes. There is no averment, express or implied, that he had any knowledge of the alleged purpose; nor was it necessary, in order to become a holder for value, that he should give the full face value of the notes. There is no merit in the averment that the notes w'ere given by one of the firm defendants after dissolution of their copartnership. The affidavit of defense is silent as to notice, actuaL or constructive, of the dissolution. If plaintiff below' had previous dealings with the firm, he was entitled to personal notice; if not, notice by publication, at least, was necessary. Watkinson v. Bank of Pennsylvania, 4 Whart. 482, 34 Am. Dec. 521; Brown v. Clark, 14 Pa. 476; Clark v. Fletcher, 96 Pa. 416.

In the case last cited it is said: “Adíen an ostensible or known member of a copartnership retires therefrom and wishes-to shield himself from liability for future debts of the firm, it is necessary that personal notice of his withdrawal be given to-all who have had dealings with the firm; and that notice be given by publication or otherwise to all others.” The court was clearly right in entering judgment for want of a sufficient affidavit of defense.

Judgment affirmed.