Rosenbaum v. Hazard
| Decision Date | 09 October 1911 |
| Docket Number | 251 |
| Parties | Rosenbaum, Appellant, v. Hazard |
| Court | Pennsylvania Supreme Court |
Argued May 16, 1911
Appeal, No. 251, Jan. T., 1910, by plaintiff, from judgment of C.P. Bucks Co., Cot. T., 1907, No. 5, for defendant non obstante veredicto in case of Morris Rosenbaum v. Rowland H Hazard. Reversed.
Assumpsit for the amount of a check. Before STOUT, P.J.
At the trial the jury returned a verdict in favor of the plaintiff for $4,583.25.
On a motion for judgment for defendant non obstante veredicto STOUT, P.J., stated the facts to be as follows:
This suit was brought by the plaintiff, Rosenbaum, the holder against the defendant, Hazard, the drawer, to recover the amount of a check with interest. The check is in the following form:
"No.
BRISTOL, September 20, 1901.
"Farmers' National Bank of Bucks County, Pay to the order of John Sparhawk, Jr., Four Thousand x/100 Dollars.
ROWLAND H. HAZARD.
(Indorsed) JOHN SPARHAWK, JR."
On September 17, 1901, the plaintiff, at the request of John Sparhawk, Jr., cashed the said check, which was then duly indorsed by Sparhawk. The check, being on a country bank dated three days after the date of the transaction, the plaintiff demanded of Sparhawk his personal check on a city bank to cover the Hazard check in the event it should be dishonored. Sparhawk gave to plaintiff, Rosenbaum, his check in the sum of $4,000, dated September 17, 1901, payable September 23, 1901, at Merchants' National Bank, Philadelphia. According to Sparhawk's version of the transaction he applied, on September 17, 1901, to plaintiff, Rosenbaum, for a temporary loan of $4,000 for three days, and gave him his own check for $4,000, dated September 17, 1901, payable September 23, 1901. That he also gave him the Hazard check in suit, through which said loan was to be paid. So far as this case is concerned it makes no difference which version is correct. Subsequently, at the request of Sparhawk, the Hazard check was not transmitted for collection. The Hazard check was never presented for payment at the Farmers' National Bank of Bucks county, and on September 18, 1907, two days less than six years after the date of the check, suit was brought thereon in this court.
At the trial plaintiff put the check in evidence and rested. Defendant moved for nonsuit on the ground that the plaintiff had not made out a case on which he was entitled to recover. The defendant then proceeded with his defense, to wit, payment. Not payment by the defendant, but by Sparhawk, who had given the check as collateral to secure the loan of $4,000. The plaintiff at the trial admitted two payments, aggregating to $850. Numerous checks were offered in evidence to show that the said loan was paid off in full by Sparhawk, but the plaintiff testified that some of the checks so offered were paid by him in cash for the accommodation of Sparhawk, or whoever presented them, and that the other checks were payments on account of other loans which plaintiff had made to Sparhawk. The verdict establishes that the jury adopted the plaintiff's view of the case. The defendant offered evidence to show that he had sustained loss by plaintiff's failure to present the check for payment by reason of his having surrendered to Sparhawk certain bonds of the Camden Consolidated Ice & Cold Storage Company which he held as collateral to secure him against loss upon said $4,000 check. These bonds were surrendered by the defendant, Hazard, with full knowledge that the check was in the hands of a third party.
At the trial, both the plaintiff and the defendant carefully refrained from showing what the state of Mr. Hazard's account was at the Farmers' National Bank of Bucks county on September 20, 1901, the day on which the check was payable; whether or not there were sufficient funds there to meet the check on that day, and if there were, whether or not such funds were kept there from that date until the suit was brought. There was no evidence as to the solvency or insolvency of the bank during the period the check was outstanding unpresented. It being a home bank, such information was easily available. The plaintiff evidently assumed that the burden of proof rested upon the defendant to show that he had suffered loss by the failure to present the check for payment in order to escape liability to the extent of such loss; and the defendant, that the burden rested upon the plaintiff to show that the defendant had suffered no loss to entitle him to recover. The motion being for judgment for defendant non obstante veredicto, the court must decide the question raised upon the facts as disclosed at the trial.
The court citing Flemming v. Denny, 2 Phila. 111; Little v. Phenix Bank, 2 Hill (N.Y.), 425; Daniels v. Kyle, 1 Kelly, 304; Arnold v. Mangan, 89 Ill.App. 327; Stevens v. Park, 73 Ill. 387; Kirkpatrick v. Puryear, 93 Tenn. 409 (24 S.W. Repr. 1130), and Anderson v. Rodgers, 53 Kan. 542 (36 Pac. Repr. 1067), held that the burden was on the plaintiff to show that the defendant had suffered no loss, and accordingly entered judgment for defendant non obstante veredicto.
Error assigned was in entering judgment for defendant non obstante veredicto.
Franklin S. Edmonds, with him Hugh B. Eastburn and Wm. Clarke Mason, for appellant. -- In a suit on a check less than six years after maturity, a holder in due course is not required to prove affirmatively that the drawer has been occasioned no loss, until there is evidence of unreasonable delay in presentment and also proof of the insolvency of drawee bank or other evidence of damage to drawer by competent testimony: Conroy v. Warren, 3 Johns. Cases, 259; Flemming v. Denny, 2 Phila. 111; Robinson v. Hawksford, 9 Adolph. & El. (N.S.) 52; Hoyt v. Seeley, 18 Conn. 353; Stewart v. Smith, 17 Ohio St. 83; Cowing v. Altman, 79 N.Y. 167; Carroll v. Sweet, 128 N.Y. 19 (27 N.E. Repr. 763); Lloyd v. Osborne, 92 Wis. 93 (65 N.W. 859); Cox v. Citizens' State Bank, 73 Kan. 789 (85 Pac. Repr. 762); Lynch v. Lyons, 131 A.D. 120 (115 N.Y.S. 227); Spink & Keyes Drug Co. v. Ryan Drug Co., 72 Minn. 178 (75 N.W. 18); Williams v. Braun, 112 Pac. Repr. 465.
Howard I. James, for appellee. -- The trial court properly held that the burden of proof was on the plaintiff to show that the drawer did not suffer loss: Wisner v. First Nat. Bank, 220 Pa. 21; Hopkirk v. Page, 2 Brockenbrough, 20; Commercial Bank v. Hughes, 17 Wend. (N.Y.), 94; Little v. Bank, 2 Hill (N.Y.), 425; Syracuse, Binghamton & N.Y.R.R. Co. v. Collins, 3 Lans. (N.Y.), 29; Willetts v. Paine, 43 Ill. 432; Stevens v. Park, 73 Ill. 387; Arnold v. Mangan, 89 Ill.App. 327; Planters Bank v. Merritt, 54 Tenn. 177; Springfield v. Green, 66 Tenn. 301; Kirkpatrick v. Puryear, 93 Tenn. 409 (24 S.W. Repr. 1130); Ford v. McClung, 5 W.Va. 156; McClain v. Lowther, 35 W.Va. 297 (13 S.E. Repr. 1003); Hamlin v. Simpson, 105 Iowa 125 (74 N.W. 906).
Before FELL, C.J., MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.
The plaintiff in this case, as the holder for value of a check brought suit to recover the amount thereof from the drawer. The latter averred in his affidavit of defense that the check was given to the payee for use in a certain specific business transaction, and that it was diverted from the use for which it was intended, and was negotiated by the payee to the plaintiff, as security for a loan of $4,000, which loan was afterwards repaid. Upon the trial, plaintiff admitted that two payments, amounting to $850, had been made, for which he allowed credit. The evidence as to further payments was conflicting, and was submitted to the jury, and they...
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