Epler v. Funk

• Decision Date: 08 July 1848
• Citation: 8 Pa. 468
• Parties: EPLER <I>v.</I> FUNK.
• Court: Pennsylvania Supreme Court

8 Pa. 468

EPLER v. FUNK.

Supreme Court of Pennsylvania.

July 8, 1848.

IN error from the Common Pleas of Dauphin county.

Fisher, for plaintiff in error.

McCormick, contrà.

July 8. ROGERS, J.

This is an action by an endorser against the maker to recover $100, payable to the order of Henry Hamer twelve months after date. It is endorsed to J. M. Funk, without recourse. The defence is, that the consideration of the note was for the right of vending Hoover's patent corn-stalk cutting-machine, in Dauphin county; that the machine was entirely worthless, and that defendant was induced to enter into the contract by combination, contrivance, and fraud. The plaintiff, after proving the handwriting of the maker and endorser, offered the note in evidence, which was objected to, because, the defendant says, it is not admissible under the statement filed, and in a case like this it is necessary to file a narr., setting out specially the cause of action, the transfer of it, and all the special circumstances. But we are of opinion there is nothing in the objections. The case was clearly embraced by the statement, and the cause of action is set out with convenient certainty. There is nothing in the second bill. An endorser, it is true, is not a competent witness for the endorsee; but where he is released by the endorsee, as here, he is competent, not to impeach, but to enforce payment of the note. This has been repeatedly ruled: Vide Barnes v. Ball et al., 1 Mass. Rep. 73; Rice v. Stearns, 3 Ib. 225.

The third bill presents more difficulty. The defendant contends that, under the circumstances exhibited on the face of the note, on the special endorsement and the facts given in evidence, he is entitled to make the same defence against the endorser as between the original parties to the note. The note is endorsed by the payee to the order of J. M. Funk, the plaintiff, "without recourse." This, it is said, is not in the usual course of business; that it was sufficient to put the endorser on his guard, and to lead him to suspect there was something wrong in the transaction, as between the maker and payee. But although most usually notes go forth endorsed in blank, yet I cannot agree that such an endorsement affects the negotiable quality of the paper. It shows only an unwillingness to be answerable for the solvency of the maker — a prudent precaution, particularly where, as here, the note has a long time to run before it matures. And this is the view taken of this fact, in Rice v. Stearns, 3 Mass. Rep. 225. In that case, a promissory note was endorsed specially thus: "For value received, I order the contents of the note to be paid to A. B., at his own risk." Two points were ruled: 1st. That in an action on such a...