Miller v. Pollock

• Decision Date: 02 January 1882
• Citation: 99 Pa. 202
• Parties: Miller <I>versus</I> Pollock et al.
• Court: Pennsylvania Supreme Court

99 Pa. 202

Miller versus Pollock et al.

Supreme Court of Pennsylvania.

November 17, 1881.

January 2, 1882.

November 17th, 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Butler county: Of October and November Term, 1881, No. 304.

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H. H. Goucher and L. McQuistion, for the plaintiff in error.—The amendment should not have been permitted. The Act of Assembly contemplates the correction only of a mistake in the name and not in the title of a party: Freeland v. Penn. Railroad, 2 Pearson 73; Ward v. Stevenson, et al., 3 Harris 21; Commonwealth ex rel. v. Dillon, et al., 32 P. F. Smith 45; Young v. Young, 7 Norris 422.

The transfer of mercantile paper as collateral security does not constitute the transferee a holder for a valuable consideration: Petrie v. Clark, 11 S. & R. 377; Walker v. Geisse, 4 Wharton 258; Depeau v. Waddington, 6 Wharton 220; Hartman v. Dowdel, 1 Rawle 279; Trotter v. Shippen, 2 Barr 358; Oakford v. Johnson, 2 Miles 203; Jackson v. Polack, 2 Miles 362; Lord v. Ocean Bank, 8 Harris 384; Sitgreaves v. Bank, 13 Wright 359; Lenheim v. Wilmarding, 5 P. F. Smith 73; Ashton's Appeal, 23 P. F. Smith 153; Royer v. The Keystone National Bank, 4 W. N. C. 86; Muirhead v. Kirkpatrick, 9 Harris 240.

Defendant could therefore set up the fact that he was a mere accommodation indorser as against plaintiffs.

S. F. Bowser and L. Z. Mitchell, for defendant in error.— The amendment was clearly proper: Rangler v. Hummell, 1 Wright 132; Commonwealth ex rel. v. Dillon, et al., 32 P. F. Smith 44.

The notes were indorsed to plaintiff's decedent as collateral, not for an antecedent debt but for a new and distinct consideration. Plaintiffs were therefore in the position of purchasers for value: Kirkpatrick v. Muirhead, 4 Harris 123.

Mr. Justice STERRETT delivered the opinion of the court, January 2d 1882.

The real difficulty in the way of a successful defence in the court below was the fact, established by uncontradicted evidence, that the negotiable notes in suit had passed before maturity for a valuable consideration into the hands of a bona fide holder, since deceased, whose personal representatives were the plaintiffs of record. This presented an obstacle that the defendant below could not overcome by the aid of any evidence in the cause, or any testimony, which he proposed to introduce. The notes, made by Frederic Miller to the order of and indorsed by defendant below, were delivered to Samuel G. W. Brown in consideration of the sale and transfer of his interest in the firm of Brown & Ivory, to Frederic Miller, the maker. Having thus originated in a regular business transaction, the notes were undoubtedly valid in the hands of the first indorsee, who before maturity and for a valuable consideration, passing to him at the time, indorsed and delivered them to James E. Brown, whose personal representatives are the plaintiffs below. Each of the notes was separately taken by James E. Brown, as collateral to a larger note made by Samuel G. W. Brown and simultaneously discounted for him on the faith of the collateral, and the proceeds drawn by him. The larger notes were renewed, but neither of them was ever paid or reduced. It is, therefore, a mistake to suppose that James E. Brown did not thus become a bona fide holder of the notes in suit for value. It is true, they were indorsed and delivered to him as collateral security, but not as collateral for a pre-existing indebtedness. The discounting of the larger notes, on the faith and credit of the note that accompanied each respectively, was a new and valuable consideration passing between the parties at the time; and the principal notes not having been paid, either in whole or in part, the collaterals were outstanding and valid in the hands of James E. Brown for their full face, and according to well settled principles the plaintiffs were entitled to recover: Munn v. McDonald, 10 Watts 270; Spering's Appeal, 10 Barr 235; 2 American Leading Cases 234, and numerous authorities there cited. In several of these cases the distinction between a merely collateral security and a security given as an inducement to an act, which is...