Liebig Manufacturing Co. v. Hill , 7 Pa. Super. 15 ( 1898 )

Opinion by

Porter, J.,

The defendant in this case seeks to escape liability on her promissory note: first, on the ground that she was known to the holder to be an accommodation maker, although the note was taken before maturity. We think the court below erred in permitting the introduction of the evidence showing absence of consideration to the maker. It was not matter of defense. The plaintiff was shown to be a holder for value and “ a holder for value may recover though he knew at the time he purchased that it was an accommodation note and that there was no consideration between the maker and the payee. . . . Were it not so the purpose intended by the original parties to the paper w'ould be defeated: ” Moore v. Baird, 30 Pa. 138.

The second ground of defense and that upon which the court below directed a v'erdict to be entered for the defendant involves a consideration of the provisions of the act of April 22, 1874, which provides in its first section that “ No foreign corporation shall do any business in this commonwealth until it shall have established an office or offices and appointed an agent or agents for the transaction of its business therein ” and in the second section that “ It shall not be lawful for any such corporation to do any business in this commonwealth until it shall have filed . in the office of the secretary of the commonwealth a statement,” etc.

The plaintiff was shown to be a New Jersey corporation whose business is the manufacture of phosphate. By the testimony of the witness, Hilton, called for the defendant, it appears that he had bought certain phosphate from the plaintiff through one John I. Smith. In payment for the phosphate and on account of a preceding debt to the Liebig Company the said Hilton gave the promissory note in suit to said Smith for the plaintiff company.

The testimony of the witness Smith is confusing and evasive in respect to his relationship to the plaintiff company. He says: “Q. Where do you live? A. Trenton, N. J. Q. How long have you been connected with the Liebig Manufacturing Co. ? A. Since 1892. . . . Q. Were you the representative of the Liehig Manufacturing Co.? A. I represented them, and had goods .made there, which I sold. Q. I asked you if you were the representative of the Liebig Manufacturing Company? A. I answered that. . . . Q. Were you an agent of the company ? A. I don’t know what you would call it. They made goods for me under my brands. Q. Were you the agent of the Liebig Manufacturing Co.? A. I don’t know whether you would term that an agent or not. Q. Did you receive any pay from the Liebig Manufacturing Company? A. I got a percentage on the goods, that is, the goods that were made under my brands. Q. Who paid you for your services ? A. I got a percentage. . . . Q. You got these notes and turned over the notes to the Liebig Manufacturing Co.? A. Yes, sir. Q. Did you send an order to the Liebig Manufacturing Co. to send these phosphates to Hilton? A. Yes, sir. Q. And they sent them on that order? A. Yes, sir. Q. You turned these notes in payment of these orders ? A. Yes, sir.”

Again, in the important matter of the shipment of the goods to Hilton, the testimony is contradictory. In one place the witness Smith testifies: “ Q. They had been shipped to him [Hilton] from the Liebig Manufacturing Company? A. Yes, sir.” In another place Smith answers“ They were shipped to me; ” and in still another place, “ No, they were shipped in my name.”

On this evidence, we think the court below was not justified in directing a verdict for the defendant. The question whether the transaction between these parties was a “ doing of business'” by the plaintiff company in this state within the meaning of the act-of 1874, should have been left-to the jury under proper instructions from the court.

This case must therefore be retried.' We cannot anticipate what facts may be presented on the new trial. We, however, call attention to the views expressed by this court as to the meaning aiid effect of the act of 1874, in an opinion (filed since this case was tried) in the casé of Blakeslee Manufacturing Co. v. Hilton, 5 Pa. Superior Ct. 184.

The assignments of error are sustained and a venire facias de novo is awarded.