Laubach v. Meyers

• Decision Date: 29 February 1892
• Docket Number: 194
• Citation: 23 A. 765,147 Pa. 447
• Parties: Laubach v. Meyers, Appellant
• Court: Pennsylvania Supreme Court

23 A. 765

147 Pa. 447

Laubach v. Meyers, Appellant

No. 194

Supreme Court of Pennsylvania

February 29, 1892

Argued February 3, 1892

Appeal, No. 194, Jan. T., 1892, by defendant, Henry F Meyers, from order of C.P. Lehigh Co., Jan. T., 1892, No. 13 entering judgment for plaintiff, Milton B. Laubach, for want of a sufficient affidavit of defence.

Assumpsit on a lost instrument in writing.

The plaintiff's statement was as follows:

"The above stated action is founded as follows: The plaintiff sold his store in Bethlehem, Pa., to one Harpel Yearick, and, as a part of the consideration therefor, received a promissory note, of which the following is a correct copy:

"$2,250.

Sept 3rd, 1890.

"One day after date we promise to pay to the order of M. B. Laubach, at the First National Bank of Bethlehem, two thousand two hundred and fifty dollars without defalcation, value received, with interest. And further do hereby authorize and empower any attorney of any court of record of Pennsylvania or elsewhere to appear for and to enter judgment against for the above sum, with or without declaration, with costs of suit, release of errors without stay of execution and with per cent. added for collecting fees, and also waive the right of inquisition on any real estate that may be levied upon to collect this note, and do hereby voluntarily condemn the same and authorize the prothonotary to enter upon the fi. fa. said voluntary condemnation, and further agree that said real estate may be sold on a fi. fa., and hereby waive and release all relief from any and all appraisement, stay or exemption laws of the state now in force or hereafter to be passed.

"Witness:

"FRANK MICHAEL,

"MRS. HENRY F. MEYERS.

HARPEL YEARICK, [L.S.]

HENRY F. MEYERS. [L.S.]

"That the said plaintiff never negotiated or disposed of said note, but that he has lost or mislaid the same, and after diligent search has been unable to find the same; that the said note is now due, owing and unpaid; that the said plaintiff caused demand to be made for the payment thereof; that the said Harpel Yearick has died since the execution and delivery of said note; that, prior to the demand and this suit, the plaintiff tendered security and bond of indemnity," set out in full in the statement, indemnifying defendant in case the lost note should be found. The bond recited the note as dated "Sept. 3, 1890, payable on April 1, 1891, with interest from date."

Plaintiff's statement concludes: "Plaintiff claims that the said note is now due, owing and unpaid, and, by reason thereof, the said defendant is indebted thereon to him in the sum of $2,250, together with interest thereon from Sept. 4, 1890, and an attorney's commission of five per cent for collection and costs of suit."

The affidavit of defence was as follows: "Henry F. Meyers, the defendant above named, being duly sworn according to law, deposes and says, that he has a just and legal defence to the claim of the said plaintiff, and to the maintenance of the above stated action, the nature and character whereof is as follows, to wit:

"1. Deponent says, that the said several promises and undertakings in the statement of the plaintiff, mentioned (if any such were made), were made jointly with one Harpel Yearick, and not by the said defendant alone; that the said Harpel Yearick was dead, and letters of administration upon his estate were granted to J. B. Kemerer, Esq., before the commencement of this suit. Wherefore, as the said Harpel Yearick, or his administrators, are not impleaded in the said statement of the plaintiff with the said defendant, the aforesaid action should not be maintained against him, the said defendant, alone.

"2. This deponent further avers, that the copy set forth in the plaintiff's statement is not a correct copy of the writing or paper signed by him. The time of payment, as therein set forth, is stated as one day after the date thereof, viz., Sept. 3, 1890, whereas the paper which this deponent signed was payable on the first day of April, 1891; that Mrs. Henry F. Meyers was not a witness to the paper signed by this deponent, as is set forth in the alleged copy contained in the plaintiff's statement; that said Mrs. Meyers had died in April, 1885, more than five years before the date of said alleged copy; that the name of the said Yearick, who should be codefendant with this deponent, is not Harper Yearick, as set forth in said alleged copy, but P. Harpel Yearick. (In the copy served on defendant the name Harper Yearick appeared.) The said deponent avers, that the matters aforesaid are of the highest importance to him, as affecting his rights, in view of the fact that said paper, upon which the suit is brought, is lost or mislaid, as set forth in the plaintiff's statement. And, further, the deponent avers that no benefit or profit whatever accrued to him, the said defendant, by reason of the sale of the plaintiff's stock or goods to the said Harpel Yearick.

"3. That said plaintiff has not set forth in his statement such facts in regard to a search for the missing paper as, considering the amount and importance thereof, and the situation of this deponent in relation thereto, he, the said deponent is entitled to under the law. Said plaintiff does not state where, when, or whether or not, he made search for the same among any papers whatever. All of which facts the said plaintiff should establish by legal and competent evidence, in order to protect this deponent's rights in the premises.

"4. I deny that said plaintiff tendered me a bond of indemnity before commencing this said suit; that the note set forth in the copy of the bond, as contained in said statement, is described as a promissory note, and payable on April 1, A.D. 1891, whereas the copy of the paper upon which this action is brought is dated Sept. 3, 1890, and payable one day after the date thereof, and the same is a copy of a bill-single, and not a promissory note.

"5. The said deponent further avers, that, upon the paper upon which said suit is founded, he is not severally liable, and he denies that there is now due and owing said plaintiff, from the said defendant, the said sum of $2,250, as claimed by the plaintiff aforesaid. That the paper, upon which the plaintiff founds his action, makes no provision for any definite collecting fee, but the same is left blank, as appears from the plaintiff's statement, and this deponent signed no paper or writing providing for any definite collecting fee or attorney's commission.

"All of which facts this deponent is prepared to prove and establish on the trial of the cause. Wherefore the said plaintiff is not entitled to judgment against this deponent, but should prove his case by legal and competent evidence, so that the rights of this deponent may not be infringed upon and destroyed."

ALBRIGHT, P.J., filed the following opinion:

"The affidavit of defence presents no reason for the denial of judgment in favor of plaintiff. However, as it is averred therein that the lost note was payable on April 1, 1891, (not on Sept. 4, 1890,) and that it contained no promise to pay a definite attorney's fee for collection, judgment will be accorded to plaintiff as if the note were as alleged by defendant, that is, interest will be allowed from April 1, 1891, and no attorney fee. The court has this day ordered the bond of indemnity, described in plaintiff's statement, to be delivered to the prothonotary (which has been done), with directions to deliver it to the defendant on demand. On motion of plaintiff's attorney, judgment is entered for plaintiff, for want of a sufficient affidavit of defence, for the amount of the promissory note described in plaintiff's statement ($2,250), with interest on that sum from April 1, 1891 -- amount to be ascertained by the prothonotary."

Error assigned was the order of the court.

Judgment reversed and procedendo awarded.

Wm. C. Loos, for appellant. -- To entitle a party to recover on a lost instrument the proof of the genuineness of the original must be positive; Slone v. Thomas, 12 Pa. 209; Krise v. Neason, 66 Pa. 253; Richards' Ap., 122 Pa. 547; Porter v. Wilson, 13 Pa. 641; McCready v. Schuylkill Navigation Co., 3 Wharton, 423; McReynolds v. McCord, 6 Watts, 288.

Secondary evidence of the contents of a lost instrument can only be admitted after proof of the original existence, due execution, sealing, and delivery of the written instrument, its loss or destruction, and also a reasonable but fruitless search, according to the importance of the paper. 13 American and English Ency. of Law, p. 1119, referring to McReynolds v. Longenberger, 57 Pa. 13; Kaul v. Lawrence, 73 Pa. 410; Watson v. Jones, 85 Pa. 117, 119; 1 Greenleaf on Evidence, § 84 n., 86, 509; 1 Taylor on Evidence, pp. 397-404; 1 Wharton on Evidence, § 129-163; Swift v. Stevens, 8 Conn. 431.

A diligent and bona fide but fruitless search must have been made for the lost paper in all places where it...