Janes v. Benson

• Decision Date: 22 May 1893
• Docket Number: 404
• Citation: Janes v. Benson, 155 Pa. 489, 26 A. 752 (Pa. 1893)
• Parties: Janes v. Benson, Appellant
• Court: Pennsylvania Supreme Court

26 A. 752

155 Pa. 489

Janes v. Benson, Appellant

No. 404

Supreme Court of Pennsylvania

May 22, 1893

Argued April 26, 1893

Appeal, No. 404, Jan. T., 1893, by defendants, John A. Benson et al., executors of Wm. Benson, deceased, from judgment of C.P. Erie Co., May T., 1889, No. 184, on verdict for plaintiff, James Janes, to use of D. N. Patterson and A. H Austin.

Assumpsit to charge surety on sealed note.

The facts as they appeared at the trial before GUNNISON, P.J are stated in the opinion of the Supreme Court.

Defendant's point was among others as follows:

"1.That the note or obligation on which this suit is brought, being under seal, is a specialty and not commercial paper, and must be specially transferred by the payee named therein, in the same form, after the said payee had acquired title to said note by some positive act of his, and that a transfer of said note not in writing but by an alleged parol transfer cannot be inferred from any facts or circumstances that do not clearly show such ownership by the legal plaintiff and an intention on his part to transfer his title thereto to the equitable plaintiffs in the case, and especially as Janes always refused to loan Mrs. Edwards the money on the note.Answer: The note or obligation in this suit is a specialty.It might be transferred by the payee, by delivery, with the intention of transferring title.It is not necessary that the payee actually owned the note, if the transferee of the note was not informed of the want of ownership in the payee."[2]

The court charged in part as stated in the opinion of the Supreme Court.

Verdict and judgment for plaintiff.Defendant appealed.

Errors assigned were (2, 3) instructions, quoting them.

S. M. Brainerd, John P. Vincent with him, for appellants.Benson restricted Mrs. Edwards to a single source of supply for her wants.He was willing to have his note go to Mr. Janes only, and he may have had a good reason for this.Janes was his friend and would care for his rights as surety, and he might be willing to be guarantor to Mr. Janes, but entirely unwilling to send his name abroad in the market; for certainly if Patterson and Austin acquired a good title to the note they could transmit it to another, and he to another, and so on ad infinitum.

J. W. Sproul, for appellee.-- Where suit is brought in the name of the original party, the act of 1715(regulating assignment of bonds, etc.) has no application: Phila. v. Lockhardt,73 Pa. 211.A bond can be assigned by parol, but in such cases the suit must be in name of the obligee: Bunting's Adm'rs v. Camden & Atlantic R.R.,81 Pa. 254;1 Parsons, Contracts, p. 197.An equitable assignment of a judgment may be by parol: Dunn v. Snell,15 Mass. 481;Jones v. Witter,13 Mass. 304;Crain v. Paine,4 Cush. 483;Bank v. Penfield,69 N.Y. 502;Freurd v. Bank, 76 N.Y. 352.

Before WILLIAMS, McCOLLUM, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. WILLIAMS, JUSTICE

The question in this case is over the plaintiff's title to the instrument sued on, and it is raised by a somewhat novel state of facts.The evidence shows that Mrs. Edwards applied to William Benson, now deceased, for a loan of money upon the security of her own note.He declined to lend the money but offered to assist her in borrowing it.He told her he thought Mr. Janes would lend it to her on proper security, and that he would sign her note as surety to enable her to make the loan of him.He accordingly prepared a note at eight months, payable to Janes or order, for one hundred dollars, containing a confession of judgment, which both Mrs Edwards and himself signed and sealed.She then went to Mr. Janes with the note and applied for the loan of one hundred dollars.He examined the note and told her that the security was sufficient, but that he had just disposed of all his ready money and could not therefore accommodate her.He suggested the names of several persons to whom it would be desirable for her to apply, among whom was the firm in whose name as use plaintiff this action is brought.She went to Patterson and told him what she wanted, and offered him the note payable to Janes which Benson had signed as surety.He took the note and gave her the money.It was not paid at maturity.This action against Mrs. Edwards and the executor of the surety who was deceased, was brought in the name of Janes for their use.The executor denies that his testator ever undertook to become surety for Mrs. Edwards to any person except to Mr. Janes, and as Janes declined to accept the note or make the loan upon it, the note was functus officio when that negotiation failed.This line of defence was brought to the attention of the learned judge by the defendant's first point, in answer to which he instructed the jury as follows: "The note or obligation in this suit is a specialty.It might be transferred by the payee by delivery with intention to transfer the title.It is not necessary that the payee actually owned the note, if the transferee was not informed of the want of ownership in the payee."He then submitted the case to the jury upon the question of the character of the delivery of the note to Patterson by Mrs. Edwards, telling them, "If that was done in the presence of Mr. Janes and with his knowledge and consent you would be justified in treating that fact as evidence that it was done by the authority of Mr. Janes, and that...