Harper v. Young

• Decision Date: 05 April 1886
• Docket Number: 124
• Citation: 112 Pa. 419,3 A. 670
• Parties: Harper v. Young
• Court: Pennsylvania Supreme Court

3 A. 670

112 Pa. 419

Harper v. Young

No. 124

Supreme Court of Pennsylvania

April 5, 1886

Argued March 23, 1886

ERROR to the Court of Common Pleas, No. 2 of Philadelphia county Of July Term, 1885, No. 124.

The action was assumpsit on a promissory note brought by the holder, Charles A. Harper, against the maker, William Young. A narr in assumpsit was filed, and the defendant pleaded the general issue. The note was as follows:

$1,500.

WAUKESHA WIS., August 10th, 1883.

Seventy days after date, for value received, I promise to pay to H S. Mills or bearer $1,500 fifteen hundred dollars without defalcation or interest.

WM YOUNG.

[Endorsed] H. S. MILLS.

The following are the facts as they appeared on the trial of the case:

The defendant was formerly a bank president at Reading, and while at Waukesha, Wisconsin, was approached by a man who gave his name as Eckert and represented himself to be the son of a former friend of the defendant's. Together they subsequently called at the office of Mills (the payee of the note). Mills had a device of some sort by which drawings were made by tickets. Eckert bought tickets and gave Mills his checks for $2,600, and then asked the defendant to give his note for $1,500 to enable Eckert to take up his checks, and thus save himself (Eckhert) from the disgrace which would attend a public exposure of the matter. The defendant declined to do so and went out. Eckert followed him and begged him to agree to something, and offered to give his note to the defendant for $1,500 payable in sixty days if the defendant would give Eckert his (the defendant's) note for the same amount payable in seventy days; and Eckert promised to pay his note when due. The defendant agreed to this and gave the note, and Mills took the note to Chicago, and on August 14th, 1883, sold it to the plaintiff for value without notice.

The whole affair was a scheme between Eckert and Mills to defraud the defendant. There was no money lost at gambling. The defendant did not play, and no money was lost by Eckert. The entire defence rested upon the fact of a combination between Mills and Eckert.

The reason the defendant gave his note, was, in his own words:

"Because I believed the man to be the son of Mr. Eckert of Reading, and because I got his note which matured ten days before mine. I did that and nothing else. The note was not for any money I lost. I took no part in the lottery business."

The plaintiff presented the following points:

1. The consideration of the present note being Eckert's note for the same amount maturing ten days before the note in suit, the transaction was a mutual exchange of promissory notes, and the plaintiff is entitled to recover.

2. The fact that the note may have been fraudulent as between the original parties is no defence against the plaintiff, unless he took the note mala fide, and there is no evidence that he did so take it.

3. There is no evidence tending to show that the plaintiff was connected with or had any knowledge of the original fraud alleged to have been perpetrated upon the defendant by Eckert.

4. Under the evidence the plaintiff is entitled to recover, and your verdict should be for the plaintiff.

In the general charge the court instructed the jury as follows:

The fraudulent means by which the note was acquired are not, without more, a defence as against the plaintiff, who appears to be a holder for value and without notice. The case has, however, another aspect. [There can be no recovery on a note given in the course of a gambling transaction for money lost at play. The plaintiff admits this as a general rule, but contends that the case does not fall within it, because the defendant did not play, and gave the note for money won from his companion, Eckert. Moreover, Eckert did not, as the plaintiff contends, really lose anything, and the whole was a fraudulent pretence to mislead the defendant.]

[I do not regard this as a tenable proposition. It seems to me that whether gambling is or is not used as a pretence or coupled with fraud, it is none the less gambling; and I therefore leave the case to you with instructions that if the note was given for a gambling consideration, your verdict should be for the defendant.]

I decline the plaintiff's first point. I affirm his second point, with the qualification that it will not apply if the transaction was a gambling transaction. I affirm the plaintiff's third point and decline his fourth point.

Verdict for the defendant and judgment thereon, whereupon the plaintiff took this writ, assigning for error the answer of the court to his points, and those portions of the general charge included within brackets.

Judgment affirmed.

Angelo T. Freedley, for plaintiff in error. -- There was no evidence to warrant the court in submitting to the jury the question whether the...