First Nat. Bank of Bloomsburg v. Gerli

• Decision Date: 22 June 1909
• Docket Number: 83
• Citation: 225 Pa. 256,74 A. 52
• Parties: First National Bank of Bloomsburg v. Gerli, Appellant
• Court: Pennsylvania Supreme Court

74 A. 52

225 Pa. 256

First National Bank of Bloomsburg v. Gerli, Appellant

No. 83

Supreme Court of Pennsylvania

June 22, 1909

Argued April 14, 1909

Appeal, No. 83, Jan. T., 1909, by defendant, from judgment of C.P. Columbia Co., Dec. T., 1908, No. 34, on verdict for plaintiff in case of The First National Bank of Bloomsburg v Emanuel Gerli, Administrator C.T.A. of the Estate of Guiseppe Ratti, deceased. Reversed.

Assumpsit on a promissory note. Before EVANS, P.J.

The note was as follows:

"BLOOMSBURG PA., Aug. 7, 1906.

"No 7,531.

"Four months after date I promise to pay to the order of Joseph Ratti, $5,000, five thousand dollars, at the First National Bank of Bloomsburg, Pa. Due December 7, 1906. Without defalcation, for value received.

Credit the drawer.

"(Signed) E.F. CARPENTER.

"(Endorsed)

"JOSEPH RATTI."

At the trial the plaintiff made the following offer:

Mr. Ikeler: I will make a general offer so as to get this matter upon the record. Counsel for plaintiff propose to prove by the witness upon the stand that he is the maker of the note marked exhibit "A" and that Joseph Ratti indorsed the same in his own proper handwriting before maturity some time in the spring of 1906, at his residence in the town of Bloomsburg at the request of Mr. Carpenter, the witness; that Mr. Ratti was an Italian by birth; a man of large means, whose family and relatives resided in the kingdom of Italy; that he was accustomed to making frequent trips abroad, sometimes staying for a period of six months; that the note in suit was indorsed by Joseph Ratti on the day of his departure to New York city for the purpose of sailing to Italy to be gone a considerable time; that the witness did not at that time know the exact date when he might wish to use the note, which Mr. Ratti had indorsed, and for that reason at the time of this indorsement, the date of the note was left in blank with the full understanding of both Mr. Ratti and the witness that it should be dated whenever used and discounted for the benefit of Mr. Carpenter; that at the same time of the indorsement of the note Mr. Ratti agreed with and instructed Mr. Carpenter as cashier of the First National Bank that the note in question should not be protested, and that he thereupon instructed Mr. Carpenter to attach to the note, whenever he might present it for discount, a typewritten slip containing a waiver of protest and duly signed by Mr. Ratti. We offer further to show that the witness and Mr. Ratti had had a large number of business transactions together and that at the times when Mr. Ratti was in Italy it was his custom to leave his various notes in the different banking institutions upon which he was maker or indorser in the hands of Mr. Carpenter, and to leave with him at the same time waivers of protest so that any and all notes upon which his name appeared, either as maker or indorser, might not be protested at maturity; that on August 7, 1906, the witness had the notes discounted at the First National Bank of Bloomsburg in the town of Bloomsburg, the plaintiff in this case, filling in the date at that time according to the understanding and agreement of Mr. Ratti, and at the same time that the note was discounted Mr. Carpenter as cashier attached thereto with brass clips the waiver of protest which had been signed by Mr. Ratti; that Mr. Ratti died in Italy October 26, 1906, before maturity of the note; and also to show that the note had not been paid by the witness, the maker. All of which evidence is offered for the purpose of explaining the postdating of the note in suit, and also to identify the slip of paper attached to the note as having been intended by Joseph Ratti to apply and refer to this identical paper; to show generally before the maturity of the note Joseph Ratti waived notice of nonpayment and protest thereon. All generally for the purpose of establishing the liability of the defendant in this case upon the note in suit.

Mr. Ikeler: It is conceded that the proceeds of this note were discounted by the plaintiff bank, and were placed to the credit of Mr. Carpenter on the books of the bank.

DEFENDANT'S OBJECTION.

Mr. Harman: Counsel for the defendant object to the competency of the witness to testify to the acts or declarations of the decedent, Joseph Ratti, wherein witness acted for and represented the First National Bank, plaintiff, in this case. The incompetency being based upon the inability in the law of the witness to testify for the surviving or remaining party to the thing or contract in action, the other party to the same being dead. Further object to the competency of the witness to testify to the acts, matters and things as related in the offer, for the reason that the witness is disqualified and incompetent under clause "E" of sec. 5 of the witness act of 1887, on the ground of having an adverse interest to the estate of the deceased indorser of the note.

Mr. Ikeler: I desire to make an addition to the offer, to further show by the witness on the stand that although Mr. Ratti did not sign the note under the words "credit the drawer," the note was drawn by Mr. Carpenter and that he requested Mr. Ratti to indorse the same, and Mr. Ratti did indorse it with the full understanding and knowledge and agreement that the proceeds of this note, when discounted, should go to the credit of E.F. Carpenter.

Mr Harman: Counsel for the defendant further objects to the competency of the witness, E.F. Carpenter, to testify to any matter or thing in relation to the character of the paper in question, upon the well-known rule of law that parol testimony cannot ordinarily be attempted to vary or...