Breneman v. Furniss
| Decision Date | 23 June 1879 |
| Citation | 90 Pa. 186 |
| Parties | Breneman <I>versus</I> Furniss. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.
Error to the Court of Common Pleas of Lancaster county: Of May Term 1879, No. 28.
B. Frank Eshleman and D. G. Eshleman, for plaintiff in error.— The plaintiff did not obtain the check in the course of business. He was not a bona fide holder for value. He was one of the parties to the transaction out of which it arose. If, therefore, there was a want of consideration for the endorsement by the defendant, or any other defect in the agreement between the parties, the defendant, as against the plaintiff, had a right to set up such failure or defect as a defence.
Therefore, when the plaintiff had testified that defendant had asked him not to present the check at the bank, and promised him that if Kendig, the maker, did not pay it he would, it was proper for the defendant to ask him what consideration he, the defendant, received for his promise. If defendant made such a promise to the plaintiff, he must have had some reason for it, and was entitled to have the plaintiff's account of the whole transaction. That question was not only cross-examination, but the very essence of cross-examination.
L. W. Johnson and George M. Kline, for defendant in error.— The court allowed defendant to prove, although he was a party to this negotiable instrument, that he was not to be liable on it. He had the full benefit of this before the jury. The court told the jury, if they found from all the evidence in the case, "that Furniss agreed with the defendant (Breneman) that he should not be liable for the check by reason of his endorsement, then their verdict should be for the defendant." The jury took the evidence and from it found: That the check was not to be presented to the bank; that no such agreement as Breneman alleged as to nonliability existed. This, we think, was giving the defendant the advantage of a defence not permissible in view of the cases of Hill v. Gaw, 4 Barr 493; Mason v. Graff, 11 Casey 448; Heister v. Hart, 23 Smith 289.
The defendant in the court below contended that he permitted the use of his name as payee and endorsed the check in suit, at the request of and as a matter of accommodation to the plaintiff, not only without consideration, but upon the express promise and agreement that he should incur no liability by reason of his endorsement. It was competent, as between the immediate parties to the transaction, to prove these allegations. An attempt on the part of the plaintiff to enforce payment of the check under these circumstances was making such an improper use of it as would justify proof of the agreement under which it is alleged the endorsement was procured: Hill v. Ely, 5 S. & R....
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