McConeghy v. Kirk

• Decision Date: 23 March 1871
• Citation: 68 Pa. 200
• Parties: McConeghy <I>versus</I> Kirk.
• Court: Pennsylvania Supreme Court

68 Pa. 200

McConeghy versus Kirk.

Supreme Court of Pennsylvania.

March 17, 1871.

March 23, 1871.

March 17th 1871.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ. WILLIAMS, J., at Nisi Prius

Error to the District Court of Philadelphia: No. 62, to July Term 1870.

T. R. Elcock, for plaintiff in error.—1. Defendant states that "he did not receive a notice of the non-payment of the said note at its maturity:" Story on Prom. Notes, § 299. There is upon the record no averment that the defendant had been given notice, or that notice had been sent him: Bellemire v. Bank of the United States, 4 Whart. 113; Bennett v. Young, 6 Harris 261.

2. McConeghy is not liable as endorser, for the note is not negotiable. It is drawn payable to the order of J. J. & J. P. Kirk. Before it becomes negotiable, and before McConeghy can become an endorser, it is necessary that the note should be endorsed by J. J. & J. P. Kirk, they being the payees: Pease v. Dwight, 6 How. (U. S.) 199; Barto v. Schmeck, 4 Casey 447; Schafer v. Bank, 9 P. F. Smith 144; Murray v. McKee, 10 Id. 35; Wright v. Hart, 8 Wright 454.

3. McConeghy cannot be considered as a guarantor, for the Act of 1855 requires all contracts of guaranty to be in writing.

4. The plaintiff showed no legal title to the note; there must be an endorsement by J. J. & J. P. Kirk, either by each separately, or, by one in the name of both: Wood v. Wood, 1 Harrison 428; Smith v. Whiting, 9 Mass. 334; Chitty on Bills 39, 132, 394; Canal Bank v. Bank of Albany, 1 Hill 287; Bircleback v. Wilkins, 10 Harris 26; Raymond v. Middleton, 5 Casey 529.

5. The note being drawn payable at The National Bank of Germantown, the plaintiff should have averred a presentment at that place: Byles on Bills 169; Thomas v. Shoemaker, 6 W. & S. 179.

J. W. Hunsicker (with whom was D. H. Mulvany), for defendant in error.—That the note was endorsed without consideration is no defence: Anspach v. Bast, 2 P. F. Smith 356; Moseley v. Hanford, 10 B. & C. 729; Woodridge v. Spooner, 3 B. & A. 233; Free v. Hawkins, 8 Taunton 92; Hill v. Gaw, 4 Barr 493; Mason v. Graff, 11 Casey 448. The presumption is that the endorsee received it bonâ fide, in due course of business and for a valuable consideration: Gray's Adm'r. v. Bank of Kentucky, 5 Casey 365.

2. The protest is an answer to the allegation of want of notice: Coddington v. Davis, 3 Denio 17; Seneca Co. Bank v. Neass, 5 Id. 330; Story on Prom. Notes 386. The endorser may not have actually received notice of non-payment and yet be bound: Woods v. Neeld, 8 Wright 86; Moore v. Somerset, 6 W. & S. 262.

3. The defendant must be presumed to have taken the note on the faith of the prior endorsement, and that endorsement is good and binding on the party who made it: Schafer v. Bank, 9 P. F. Smith 144.

The opinion of the court was delivered, March 23d 1871, by SHARSWOOD, J.

When a copy is filed in an action against a party secondarily liable as the drawer or endorser of a bill of exchange, or the endorser of a promissory note, under the 2d section of the act entitled "An Act to establish the District Court for the city and county of Philadelphia," passed March 28th 1835, Pamph. L. 88, the presumption is that all steps have been duly taken which are necessary to fix liability, such as due presentment, demand of payment at the proper time and place, and notice of dishonor; nor is it necessary that there should be any averment by the plaintiff of these particulars. The defendant must deny them in his affidavit if they do not exist: Sleeper v. Dougherty, 3 Whart. 177. Nor is it sufficient for him in such case to say that he has not received notice. He must go further, and state such facts as will justify the inference that no notice has been given or due diligence used: Moore v. Somerset, 6 W. & S. 262.

It is urged, however, that the copy filed in this case shows no endorsement by the payees, and that the defendant assumed the position of third endorser on the note, with the condition implied that the payees should assume that of first endorser, so as to give him recourse against them: Schafer v. The Farmers' and Mechanics' Bank, 9 P. F. Smith 144. The presumption, however, certainly is, that J. J. & J. P. Kirk, to whose order this note was drawn, constituted a firm or partnership, and it is an...