Rick v. Kelly

• Decision Date: 01 January 1858
• Parties: Rick versus Kelly. The Same versus Fisher.
• Court: Pennsylvania Supreme Court

Page 527

30 Pa. 527

Rick versus Kelly.

The Same versus Fisher.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Berks county.

Hagenman & Banks, for the plaintiff in error, cited Chitty on Bills 459, 464; Byles on Bills 383; Bank of U. S. v. Bank of Georgia, 10 Wheat. 333; Ontario Bank v. Lightbody, 13 Wend. 102 n.; Thomas v. Todd, 6 Hill 341; Raymond v. Baar, 13 S. & R. 319; Coolidge v. Brigham, 1 Met. 547-50; Conner v. Henderson, 15 Mass. 322; Ritchie v. Summers, 3 Yeates 543 (ante 147-8); Bank of St. Albans v. Farmers' and Mechanics' Bank, 10 Verm. 145; Gloucester Bank v. Salem Bank, 17 Mass. 33.

Davis and H. W. Smith, for defendants in error, cited Price v. Neal, 3 Burr. 1354; 10 S. & R. 94; Eagle Bank of New Haven v. Smith, 5 Conn. 71; Markle v. Hatfield, 2 Johns. 455; Young v. Adams, 6 Mass. 182; Byles on Bills 125; Story on Prom. Notes, § 117, 118; Strange v. Ellison, 2 Bailey 385; Herrick v. Whitney, 15 Johns. 240; Chitty on Bills 261 n.; Gurney v. Womersly, 3 Am. L. R. 502; Baxter v. Duren, 29 Maine 440; Rieman v. Fisher, 4 Am. L. R. 433; Ritchie v. Summers, 3 Yeates 501; McCormick v. Trotter, 10 S. & R. 94; Turnpike Co. v. Commonwealth, 2 Watts 433; Borrekins v. Bevan, 3 Rawle 23, 44; Act 5th April 1849, Brightly's Purd. 674.

The opinion of the court was delivered by PORTER, J.

There was nothing to prevent the supposed endorsers from testifying as witnesses. They were not parties to the spurious instruments in fact or law. No proceeding to recover the money could have hurt them, and no judgments in these actions could have increased or diminished their liability, for it had no existence. They had not come within the artificial rule originated in the old case of Walton v. Shelley, which prevents a party from impeaching a note who has given it currency by the sanction of his name, for they were total strangers to the transaction. If, therefore, on the principle of Gulliford v. Skinner, 9 Barr 334, the holder of a note who has transferred it without endorsement does not fall under the ban of the rule, much more should one who has never held nor transferred it be competent, and still much more when the action is not on the endorsement, but on the fact of forgery and the consequent loss.

It is necessary only to open a book on contracts, to find that even in the sale of an ordinary chattel, where on failure of consideration the purchaser rescinds the contract and brings suit to recover his money, he must place the seller where he found him, by returning the thing purchased. Nothing need be said of the difference between affirming the contract by suing on the warranty, and disaffirming it by going for a recovery on the count for money had and received, for these declarations contain that count. But it is scarcely fair to treat a promissory note as a chattel; for while it may, for some purposes, be bought and sold like a horse or a bag of wheat, it differs much from the common run of chattels. It is worthless except as it represents the ability of somebody to pay it, and this may exist to-day and be gone tomorrow, and be revived on the third day, and, throughout the process, its value may depend wholly on the promptness of the holder. The notes in this suit contained a genuine name. For aught that appears, timely application to that party might have saved the debt, for others thought proper to obtain judgments and sell his property. At some stage of the business, the plaintiffs obtained knowledge of the forgery, for they brought the actions and put the fact on record. Why not inform the defendant of his risk, and give him a chance of escape by a direct blow at the maker? What justice could there be in permitting a holder to hold on until the very close of the period of limitation, and then to spring a suit on the seller, when the genuine parties are dead and their estates gone? Observe how useless the notes were to the plaintiffs, for the endorsements were links in their chain of title, and, as these were false, recovery at their suit against the maker was impossible; but, to the defendant, possession was vital, for his right of action against the maker or some other vendor was perfect. To permit the plaintiffs to keep both verdict and note would be manifestly unjust. If not entitled to a tender before suit, the defendant has no right to its return afterwards; and to send him on a circuitous chase after it, while the genuine parties are daily growing weaker, is not to be thought of, unless some stubborn principle of law demands it. How is this?

Our Act of 5th April 1849 really accomplished little, for, long before that, it was the law that...