Wolf v. Jacobs
| Decision Date | 23 March 1899 |
| Docket Number | 81-1898 |
| Parties | J. P. Wolf v. W. M. Jacobs, doing business as W. M. Jacobs & Co., Appellant |
| Court | Pennsylvania Superior Court |
Argued November 17, 1898 [Syllabus Matter] [Syllabus Matter]
Appeal by defendant, from judgment of C. P. Lancaster Co.-1896, No 53, on verdict for plaintiff.
Assumpsit. Before Brubaker, J.
It appears from the record that plaintiff brought suit against the defendant, a prior indorser, on a promissory note. The sole question in controversy at the trial was whether or not the plaintiff had duly notified the defendant of the nonpayment and protest of the note. The court below directed a verdict for plaintiff, reserving certain questions of law, as appears from the following charge:
The testimony that has been adduced in this case is all on one side, and, as the learned counsel on either side have said, it is uncontroverted, and the case stands as if a demurrer had been made to the testimony. The facts adduced here are admitted. The counsel on either side have presented points, on which they ask us to instruct you; and as we instruct you upon them you are obliged to follow our instructions and render your verdict accordingly. It seems to us to be a very close case, and requires a little more attention than we have been able to give to the question.
I will, therefore, have to instruct you to find in favor of the plaintiff for the amount of the claim with interest, subject to the questions of law which we will reserve; and if we find we are wrong, after an argument before the court in banc, we will enter judgment in favor of the defendant, notwithstanding the verdict.
PLAINTIFF'S POINT.
The court is respectfully requested to instruct the jury that under the law and the undisputed facts in this case, their verdict must be in favor of the plaintiff for the full amount of the claim, with interest and the costs of protest. Answer: This point is reserved.
DEFENDANT'S POINTS.
The court is respectfully asked to charge the jury as follows:
1. There being no evidence of due and legal notice of protest of the note in suit as to W. M. Jacobs & Company, the defendant, the verdict of the jury must be for the defendant.
2. The plaintiff having failed to prove that he received by indorsement and delivery the note in suit from A. B. Hostetter, the verdict of the jury must be for the defendant.
3. The uncontradicted testimony in the case being that J. P. Wolf, the plaintiff, received the notice of protest on October 16, 1896, and held the same until October 19, 1896, before sending the notice to the defendant, the verdict of the jury must be for the defendant.
4. There being no evidence when the intermediate indorsers received notice of protest, the verdict of the jury must be for the defendant.
5. Under all the evidence in the case, the verdict of the jury must be for the defendant.
We reserve the questions of law on the several points presented by defendant's counsel.
Defendant's counsel moves for judgment non obstante veredicto. Rule granted.
Counsel for the defendant excepts to the charge of the court before verdict rendered, and at his request before verdict rendered, the court instructs the stenographer to write out the notes of trial, the charge of the court and the points of law reserved, and to file them of record.
Verdict for plaintiff for $ 380.07 upon which the court subsequently entered judgment on the point reserved. Defendant appealed.
Errors assigned among others were in entering judgment for plaintiff. Discharging defendant's rule for judgment non obstante veredicto.
Reversed.
Jno. E. Malone, for appellant. -- It is a well-established principle of law that each person on a note is entitled to but one day within which to give notice: Stephenson v. Dixon, 24 Pa. 148; Cassidy v. Kreamer, 22 W. N.C. 109; Etting v. Schuylkill Bank, 2 Pa. 355; 2 Daniel on Negotiable Instruments (4th ed.), 96, sec. 1044.
Defendant's third point, which was reserved, is " the uncontradicted testimony in the case being that J. P. Wolf, the plaintiff, received the notice of protest on October 16, 1896, and held the same till October 19, 1896, before sending the notice to the defendant, the verdict of the jury must be for the defendant." There was no exception taken by the plaintiff to the reservation of this point, hence the facts in it must be taken to have been conceded by Wolf, the plaintiff. If a reserved point is based upon facts that are not conceded, it is the duty of counsel to except and thus warn the court of what may be an unintentional mistake: Koons v. Telegraph Co., 102 Pa. 164; Ins. Co. v. Ins. Co., 71 Pa. 31.
If a point of law is reserved it must be done by stating on the record the facts on which it arises: Winchester v. Bennett, 54 Pa. 510; Wilde v. Trainor, 59 Pa. 439.
J. W. Johnson, for appellee. -- The principles of law applicable to this case are decided in Cassidy v. Kreamer, 22 W. N.C. 109.
Before Rice, P. J., Orlady, Smith, W. W. Porter and W. D. Porter, JJ.
This was an action brought by an indorser of a negotiable promissory note, who had become the holder thereof, against a prior indorser. The sole question in controversy at the trial was whether, or not, the plaintiff had duly notified the defendant of the nonpayment and protest of the note. The plaintiff testified that he had forwarded the notice of the dishonor of the note by mail on the same day upon which it had been received by him. If this was true, he had done all that the law required of him in order to fix the liability of the defendant. But the plaintiff offered in evidence the affidavit of defense, which explicitly stated that the plaintiff had received the notice of protest on October 16, 1896, and had held it three days, until October 19, before mailing notice to the defendant. The affidavit of defense, having been offered by the plaintiff, was in evidence for all purposes, and if its averments were true the defendant did not have due notice of the dishonor of the note. The question thus presented was a mixed one involving the application of the law to disputed facts. It was for the court to instruct the jury as to how and when the plaintiff was required to give notice to a prior indorser, and it was for the jury to find the facts under the evidence. The court directed the jury to find a verdict in favor of the plaintiff, subject to the questions of law reserved, to which action of the court exception was then and there taken by the defendant. The court subsequently entered judgment in favor of plaintiff upon the verdict. The defendant appealed and assigns for error the entry of judgment in favor of plaintiff. If upon the face of the record the plaintiff was not entitled to have judgment upon the questions reserved by the court then the judgment must be reversed.
The effect of the action of the court was to withdraw the facts entirely from the jury. If the facts were not in dispute ...
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