Lingg & Bro. v. Blummer , 1879 Pa. LEXIS 89 ( 1879 )

Mr. Justice Mercur

delivered the opinion of the court February 10th 1879.

This suit was by the endorsee against the makers of a promissory note. Judgment was taken for want of a sufficient affidavit of defence. This is assigned for error. The affidavit avers the note was delivered to a note-broker, with instructions to sell the same and pay over the proceeds thereof to the makers; but after he received it he assumed to hold it under a claim of right and refused to return it or pay over the proceeds to the makers. The strongest averment tending to impeach the note in the hands of the plaintiff below is that the deponent is informed and believes the plaintiff is not the owner of the note, and that he informed the endorser, that he did not buy the same with his money; and “ deponent is informed and believes the suit is brought by said plaintiff in his name to prevent deponent from defeating the payment of the note in the hands of the note-broker.”

Thus the averments do not support the inferences. The former substantially declare the defendant in error did buy the note, and did pay money therefor, yet at some time he declared the money was not his own. Whether he paid his own, or the money of some third person, is unimportant to the makers of the note. It does net affect their equities. This averment is a concession that the note-broker had sold the note, and had received the money therefor. That was the purpose for which it was placed in his hands. His omission to pay over the proceeds to the makers could not affect the validity of the note in the hands of the purchaser. There is no averment of any fact which shows bad faith either in the person whose money paid for the note, or in the defendant in error. Neither one is charged with knowledge affecting the good faith of the purchase. The inference is that from information and belief of the deponent, the suit was brought in the name of the defendant in error to prevent a defence that might have been made to a suit in the name of the note-broker. If, however, as previously averred, the note had been purchased of the note-broker, all this alleged information and belief constituted no defence against a recovery in the hands of a good faith purchaser. Whether the defendant in error sued in his own right or as a trustee for another whose money paid for the note is. a matter in which the makers have no concern. They aver no equities and no defence against any one interested in the purchase or payment. The court committed no error in ordering judgment to be entered. Judgment affirmed.