Lesley v. Ewing
| Decision Date | 08 February 1915 |
| Docket Number | 326 |
| Citation | 248 Pa. 135,93 A. 875 |
| Parties | Lesley, Appellant, v. Ewing |
| Court | Pennsylvania Supreme Court |
Argued January 20, 1915
Appeal, No. 326, Jan. T., 1914, by plaintiff, from judgment of C.P. No. 5, Philadelphia Co., March T., 1912, No. 6200 n.o.v., in case of Hugh Lesley v. J. Hunter Ewing, Thomas L Elwyn, and William E. Whelen, who were with Henry Whelen and Charles C. Whelen, late trading as Townsend, Whelen & Company. Affirmed.
Assumpsit to recover amount paid on forged endorsement of check. Before RALSTON, J.
The facts appear in Lesley v. Ewing, 244 Pa. 480, and in the opinion of the Supreme Court.
Verdict for plaintiff. The court subsequently granted defendant's motion for judgment n.o.v. Plaintiff appealed.
Error assigned, among others, was in entering judgment for the defendant n.o.v.
Judgment affirmed.
C. Wilfred Conard, with him Owen J. Roberts, for appellant.
Walter George Smith, with him William Rudolph Smith, for appellee.
Before MESTREZAT, POTTER, ELKIN, MOSCHZISKER and FRAZER, JJ.
When this case was here before the judgment was reversed with a venire upon the sole ground that too much latitude was allowed in the cross-examination of a certain witness Lesley v. Ewing, 244 Pa. 480. No other question was considered by this court for the reasons stated in that opinion, and there was not the slightest indication that the case should be treated otherwise than de novo upon its merits when retried. The fact that the judgment was reversed with a venire facias de novo did not necessarily mean that the case must be submitted to the jury without regard to the legal rights of the parties. In that case the jury returned a verdict for defendants, and a judgment having been entered thereon, plaintiff appealed. Improper cross-examination was the principal matter complained of by the assignments of error in that case, and no other question was decided upon that appeal. At the second trial the error pointed out by this court relating to the cross-examination of a witness was corrected and the case was tried upon its merits. The real point in controversy now is whether upon the established facts at the second trial the case was for the jury or for the court. A brief recital of the facts will be helpful to a proper understanding of the question involved. Lesley had money to loan and Futrell, a friend and an attorney, recommended a first mortgage upon certain real estate as a good security. Before making the loan Lesley went upon the ground and looked over the property. He was satisfied with the security and agreed to purchase the mortgage. The owner of the property was represented to be one Buzby, who was unknown to Lesley. Lesley made no inquiry of Buzby, nor of any one else, but relied solely upon the representations made by his friend Futrell. He made out his check for $4,000, payable to the order of Buzby, handed it to Futrell, and in due time received a mortgage in the same amount purporting to be executed by Buzby upon the property which he had examined. This all occurred in 1907. Futrell paid the interest as it accrued upon the mortgage until August, 1910, after which no interest was paid. In June, 1911, Futrell informed Lesley "that he was in trouble and that the mortgage was of more or less questionable value." In July, 1911, Lesley was informed that the mortgage was a forgery. After being so notified he admits in his testimony that: "I didn't do anything, I thought simply that my money was gone, I had lost my money and that was all there was to it." His cancelled checks during all of this time remained in the banking house of the defendants where he kept his account. He had received statements of his account from time to time since 1907, but had never taken the trouble to get his cancelled checks which remained in the hands of his bankers until October, 1911. The statements of his account showed...
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