Oberle v. Schmidt , 1878 Pa. LEXIS 45 ( 1878 )

Mr. Justice Paxson

delivered the opinion of the court,

This was an action by the holder of a promissory note against a prior endorser. Prima facie he would be entitled to recover; but the defendant put in an affidavit of defence, averring that he is informed and believes, and expects to be able to prove, that the suit is brought for the use and benefit of Charles M. Fauth (payee and first endorser), who is the real owner and holder of said note, and not for the benefit of the plaintiffs, who are merely nominal holders. This averment was sufficient to carry the case to a jury. Fauth is responsible, as payee and first endorser, to every subsequent endorser.. Hence, if Schmidt & Heil are allowed to recover against Oberle, the next preceding endorser, he, in turn, would have his remedy against .Fauth. It is plain that the latter can have no right of action against any of the subsequent endorsers, and if he is really the owner of the note, as alleged in the affidavit, and this suit was brought for his benefit, there can be no recovery.

Judgment reversed, and a procedendo awarded.