Bishoff v. Fehl

• Citation: 345 Pa. 539,29 A.2d 58
• Decision Date: 23 November 1942
• Docket Number: 172
• Parties: Bishoff, Appellant, v. Fehl et al
• Court: United States State Supreme Court of Pennsylvania

29 A.2d 58

345 Pa. 539

Bishoff, Appellant, v. Fehl et al

No. 172

Supreme Court of Pennsylvania

November 23, 1942

Argued October 2, 1942.

Appeal, No. 172, March T., 1942, from order of C.P. Allegheny Co., Oct. T., 1939, No. 1069, in case of F. G. Bishoff v John W. Fehl et al. Appeal quashed.

Assumpsit.

Motion to strike off plaintiff's second supplemental amendment to statement of claim, amended reply to counterclaim and plaintiff's accounts sustained, before ROWAND, P.J., EGAN and SOFFEL, JJ, opinion by SOFFEL, J. Plaintiff appealed.

Appeal quashed.

Kenneth G. Jackson, with him J. Roland Johnston and Thorp, Bostwick Reed & Armstrong, for appellant.

John A Metz, with him Bernard Goodman and John A. Metz, Jr., for appellee.

Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. JUSTICE PARKER:

This appeal, which is from an order striking off the plaintiff's second supplemental amendment to statement of claim, amended reply to counterclaim and plaintiff's accounts, must be quashed. The order complained of did not finally dispose of the action. (Com. ex rel. v. Wherry, 302 Pa. 134, 152 A. 846) and no judgment has been entered: Leibfried v. Horn, 294 Pa. 137, 143 A. 786; Smith v. Phila. & R. Ry., 286 Pa. 55, 132 A. 804; McClelland v. West Penn Apl. Co., 132 Pa.Super. 471, 1 A.2d 491.

It seems advisable, in order that a mistrial may be avoided, to refer to the one question of law which was made the basis of the conclusion reached by the court below as we deem the question to have been incorrectly decided. On October 26, 1933, the defendants John W. Fehl and Frank Apfel, gave the First National Bank of Braddock their promissory note for $20,118.13, payable on demand. At or before the delivery of the note the plaintiff, F. G. Bishoff, at the special request of defendants and for their accommodation guaranteed in writing, indorsed on the back of the note, the payment thereof. ^[1] Defendants failed to pay the note after demand, whereupon the bank, the holder, demanded payment of the plaintiff who lifted the note on October 31, 1936, and complied with his guaranty. The plaintiff now claims reimbursement in this suit on the basis of an implied promise by the makers of the note that if he was compelled to fulfill his guaranty they would reimburse him.

The court below held that the plaintiff's claim for reimbursement was barred by the statute of limitations since the second supplemental amendment to statement of claim, which set up a new cause of action, was not filed until March 4, 1942, more than six years after the note was due and although the note was paid by the plaintiff within six years before that date and while it was yet a valid obligation on the part of defendants. That conclusion was predicated on the erroneous assumption that the rights of a surety on a note differ "from his rights in other cases", for the reason that since he could sue on the note an implied promise on the part of the principal to reimburse a surety on a note did not exist. We do not understand this to be the law in this jurisdiction, in most other jurisdictions or as stated in the text books.

It is conceded, and properly so, that Bishoff was a surety for defendants: Act of July 24, 1913, P.L. 971, § 1 (8 PS 1); Bloomfield Trust Co. v. Trojanowski, 298 Pa. 61, 63, 147 A. 847; Miners State Bank v. Auksztokalnis, 283 Pa. 18, 26, 128 A. 726. The Act of 1913 by its terms covers "every written agreement" and it not only subjects Bishoff to the liabilities of suretyship but confers "upon him the rights incident thereto". It is plain that the act applies to a promise to answer for the default of a maker promissory note. It follows that Bishop had all the rights of a surety.

It is the settled law that "when a contract of surety is made, there arises, in the absence of an express agreement, an implied contract that the principal will indemnify the surety for any payment the latter may make to the creditor in compliance with the contract of suretyship": 50 C.J. p. 255; 21 R.C.L. p. 1097.

On payment of the note and not until then the surety is entitled to maintain the common law action of indebitatus assumpsit; 21 R.C.L. 1097. As expressed in Brannan's Negotiable Instruments Law, 4th Ed., p. 292: "The payee accommodation indorser of a note may buy the note of the holder and sue the maker thereon. Also, if he has been forced to pay the note, he has a right of action against the maker on an implied contract of indemnity, and may sue thereon within six years after the payment, although an action on the note may be barred, because more than six years have elapsed since its maturity."

Such is the law in this jurisdiction. In Hill v. Voorhies, 22 Pa. 68, a promissory note was involved and the action was by a surety on the implied promise. It...