Sunday v. Dietrich

• Decision Date: 16 April 1901
• Docket Number: 13-1900
• Citation: 16 Pa.Super. 640
• Parties: Sunday v. Dietrich
• Court: Pennsylvania Superior Court

16 Pa.Super. 640

Sunday v. Dietrich

No. 13-1900

Superior Court of Pennsylvania

April 16, 1901

Argued December 5, 1900 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendants, from judgment of C.P. Schuylkill County-1897, No. 82, on verdict for plaintiff in case of John A. Sunday, Administrator, etc., v. Neri Dietrich et al.

Assumpsit on a promissory note. Before Henning, J.

At the trial plaintiff offered in evidence the following note:

" 600.00. Friedensburg, __ Pa. __, May 1st, 1891.

" Three years after date, for value received, we, or either of us, promise to pay Faulkner & Co., or bearer (the word order striken out by a horizontal line drawn through it), Six Hundred Dollars at the Safe Deposit Bank of Pottsville, __ Pa. __, with interest at 6 per cent. per annum, interest payable annually.

" Neri Dietrich,

George A. Krammes,

W. A. Straub,

J. S. Stoudt,

E. J. Reed,

F. H. Beck,

Harvey Ferrebe,

E. E. Reed,

John A. Fertig,

Frank Brown,

Lewis Rhine,

C. F. Wagner,

C. W. Freeman,

Joshua Nagle,

D. S. Riland.

2923 D. 2398

" ENDORSED. May 1 -- 4

" Faulkner & Company without recourse.

" John Sunday for collection and credit of Hamburg Savings Bank, Hamburg, Pa. J. Jerome Miller, Cashier."

Ex. D. Nov. 28, 1899, J. F. P.

Mr. Farquhar: We call attention with this, to lay ground for the admission of this proof, to the declaration in this case and to the affidavit of defense which admits the execution.

Mr. Schalck: That we object to at this time.

Mr. Bechtel: Defendant's counsel objects to the receipt of this note in evidence, first, because it differs from the note described in the narr. in this case, in this respect: That the copy in the narr. makes the note payable to bearer without showing that the word " order" is crossed out, the copy is not a true copy of the note now offered in evidence. Second, because this note shows upon its face that the word " order" is crossed out, and " bearer" written over it, and before this note can be received in evidence it must first be shown that the word " order" was crossed out and the word " bearer" written over it before it was executed and delivered by these defendants.

Mr. Schalck: Also that the alteration of the note in a material portion of it appears from the face of the instrument and that such note thus altered is not admissible until the bona fides of the alteration are first proven. On the face of the instrument it is not admissible without explanatory evidence which the plaintiff is bound to produce in the first instance of the alteration and the circumstances under which it was made and when; that it is incumbent upon the plaintiff to prove that such alteration was made before the execution and delivery of the note, before the same is admissible in evidence.

The Court: In view of rule of court No. 3, and in view of the fact that one of the counsel for the defendants accepted service for all and appeared generally for all of them upon the appearance docket, and in view of this statement made in the affidavit of defense filed in this case on May 8, 1897, to wit: John S. Stoudt, one of the above named defendants, being duly sworn according to law, doth depose and say that he and the other defendants have a just, full and legal defense to the whole of the plaintiff's claim, the nature and character of which is as follows: The above suit is founded upon a promissory note dated May 1, 1891, for $ 600, given by your deponent other defendants to Faulkner & Brother, payable at Safe Deposit Bank three years after date, that this note was given to Faulkner & Brother, and so forth; the affidavit of defense being indorsed by said counsel, these words referring to the note now offered in evidence, upon these statements, and for these reasons the objections are overruled and the offer is sustained.

Defendants except. Bill sealed.

Mr. Schalck: It is proposed to prove by the witness on the stand (one of the defendants) that when this note was executed by him it was made payable to Faulkner & Company, or order, and not to bearer, and that the word " order" was stricken out and the word " bearer" inserted in the note in suit after the execution thereof by this witness; this it is proposed to prove, not by anything that occurred between the witness on the stand and John Sunday, the decedent, but by things that occurred between the witness on the stand and others, living and competent witnesses, namely, among others, one Reynolds, one John A. Sunday, and one Nees, the latter two, John A. Sunday and Nees, being in court here now, the one as the plaintiff in this case, and the other as a witness for the plaintiff; it is claimed that the witness is competent to testify to these matters, not only under the act of 1887, as already stated, but especially so under the act of 1891 just cited to the court, and the construction thereof in Irwin v. Patchen, 164 Pa. 52.

Mr. Farquhar: We renew our objection to the competency of the witness and the relevancy and the materiality of the testimony offered.

The Court: The proof proposed is to prove a state of facts that occurred during the lifetime of John Sunday, the deceased, in this case. The party offered here as a witness not having brought himself within the provisions of the act of 1891, or rather being improperly called, the occasion not yet having arisen for his calling as a witness, the objection is sustained and the offer is overruled.

Defendants except. Bill sealed.

Mr. Schalck: We now renew the offer and propose to follow it up with evidence that at the time of the execution of this note by this defendant and the other defendants to Faulkner & Company, that the note was given in consideration of a certain stallion named Pierre, which was then at Friedensburg, and which was then sold by Faulkner & Company to the defendants in this case; that as a part of the transaction and of the occurrences between him, the witness on the stand, and the others present there, there was a written guarantee given by Faulkner & Company, guaranteeing unto Neri Dietrich and other defendants that this stallion which was then sold by Faulkner & Company to these defendants for $ 2,500, $ 700 of which was paid at the time to Faulkner & Company, and $ 1,800 remaining unpaid, for which three notes were given for $ 600 each by these defendants, the note in suit being one, and that in and by said guarantee the said Faulkner & Company guaranteed the said stallion to be a reasonably sure foal getter, with proper care and handling, and made other guarantees therein stated, and agreed to replace him with another horse of the same breed and price if he should not prove so; that this transaction occurred between this witness and the parties herein already above named, still living and competent to testify, and who are here in court, and it is proposed to follow the evidence already offered by the evidence now offered to show a failure of consideration. This to be followed up by the proof of such failure of consideration; that the guarantee and the assurances entirely failed, and there was no consideration for the note in question and this is offered especially also in view of the fact that the note here given in evidence by this plaintiff shows that said note came into the hands of John Sunday, the plaintiff decedent, with an alteration upon the face of it; that he was bound to take notice not only of such alteration, but also affected by any and all equities that the defendants might have against Faulkner & Company or the holder of this note, the same as if it had been taken by Faulkner & Company after maturity of the note; that he is not a bona fide holder, and liable to all the defenses that may be made showing want of consideration.

Mr. Farquhar: Plaintiff objects, that the evidence already shows that John Sunday, the decedent whose administrator is the plaintiff in this case, died September 11, 1894, and the defendant on the stand is incompetent to prove anything that occurred prior to the death of John Sunday. The plaintiff furthermore objects to the relevancy, competency and materiality of the testimony offered, also that it is said to be in writing.

The Court: The objection is sustained, that is as to such testimony as is proposed to be offered by the verbal testimony of this witness. We consider such testimony illegal. If the offer includes any independent or separate testimony which does not come from the mouth of this witness, those are matters which we will consider when they are separately offered, distinctly apart from that portion of the offer which includes any testimony to be given by the witness on the stand.

Defendants except. Bill sealed.

The court gave binding instructions for plaintiff.

Errors assigned were in giving binding instructions for plaintiff. Rulings on evidence, quoting the bill of exceptions.

E. W. Bechtel and W. F. Shepherd, with them A. W. Schalck, for appellants. -- The affidavit of defense on the merits of the case had answered its purposes, and there is nothing in it that savors of an admission that the note was altered before execution; and, if it were, it would estop Stoudt only, and not the other defendants: Nesbitt v. Turner, 155 Pa. 429.

In the absence of evidence to the contrary, the maker of negotiable paper is presumed to have issued it clear of all blemishes erasures and alterations; and the burden of showing that a blemished instrument was defective when issued is upon the holder: Simpson v. Stackhouse, 9 Pa. 186; Paine v. Edsell, 19 Pa. 178; Miller v. Reed, 27 Pa. 244; Heffner v. Wenrich, 32 Pa. 423; Southwark Bank v. Gross, 35 Pa. 80; Frey v. Wessner, 1 Endlich's Woodward's Decisions, 145; Gettysburg Nat. Bank v. Chisolm, 169 Pa. 564; ...