Bank v. Fordyce

• Decision Date: 28 November 1848
• Citation: 9 Pa. 275
• Parties: BANK <I>v.</I> FORDYCE.
• Court: Pennsylvania Supreme Court

9 Pa. 275

BANK v. FORDYCE.

Supreme Court of Pennsylvania.

November 28, 1848.

IN error from the Common Pleas of _________.

Downey, for plaintiff in error.

Howell, contrà.

Nov. 28. GIBSON, C. J.

The testimony of Leazure, on cross-examination, when called to prove the execution of the assignment, was not out of place. Independent matter of defence may not be introduced by cross-examination of a witness to a collateral fact; but here, the cross-examination was to a fact which was an incident in the transaction proved, and which destroyed the effect of the testimony. It went to show that the assignment of the judgments against the drawer and the first endorser, was not an assignment of the judgments against the subsequent endorsers, who were pressing the executions which it was the object of the parties to those executions to supersede, and who could not have been quieted unless the judgments against themselves had been discharged by it. A party is entitled to bring out every circumstance relating to a fact which an adverse witness is called to prove. In Markley v. Swartzlander, 8 W. & S. 172, a party was allowed to cross-examine to new matter, because it was part of the res gestæ; which is exactly this case.

Nor was the effect of the evidence thus brought out precluded by the opinion delivered when the cause was here before. If the bargain between Luce and the drawer was, that only the judgments against the latter and the first endorser were to be assigned — not the judgments against the subsequent endorsers; — and if that part of it was left out by reason of the declarations of the scrivener sanctioned by Luce, that the agreement was so, and that it was unnecessary to insert it, the case would fall distinctly within the principle of Miller v. Henderson, 10 S. & R. 290. Indeed, it would agree in all essential particulars with Hurst v. Kirkbride, the leading case on the subject, as it was stated by Chief Justice Tilghman, in Wallace v. Baker, 1 Binn. 616. The same principle was stated by my brother Rogers on the former occasion, with this qualification, that the evidence be clear and explicit; and it is certainly much more so now than it was then. It is clearly proved that not only Leazure, the agent of the bank, but Luce, the assignee, agreed that the assignment was not to carry the judgments against the subsequent endorsers; and that a stipulation to that effect was prevented from being inserted in the writing by the declaration of Mr. Cleavinger, the legal adviser of the parties, that it was unnecessary. After that, it would be a fraud in Luce to avail himself of the omission. Even had he not agreed that those judgments should not pass, but it had been made a condition by the bank, which, being master of the subject, might assign on any conditions it should see fit to dictate, it is not easy to see why a fraud on it might not be set up by the subsequent endorsers as a fraud on a third person, just as the covert taking of a promissory note from a compounding creditor, was allowed to be set up by the maker in Cockshott v. Bennett, 2 T. Rep. 763, as a fraud on the other creditors, who had signed the deed of composition. The general principle has been applied to almost every variety of circumstances in Child v. Danbridge, 2 Vern. 71; Small v. Brackley, 2 Vern. 602; Spurret v. Spiller, 1 Atk. 105; Smith v. Bromley, Doug. (2 Eng. ed.) 696, in note; Montefiori v. Montefiori, 1 Black. Rep. 363; Cook v. Grant, 16 S. & R. 198; and Stewart v. Kearney, 6 Watts, 453. The bank may have made terms with the subsequent endorsers, which it was bound to see executed; but, whatever the notice, as it was not bound to come into the arrangement on any other terms than its own, it had a right to have them enforced at the instance of those whom it...