Liebig Manufacturing Co. v. Hill , 1899 Pa. Super. LEXIS 58 ( 1899 )

Opinion by

William W. Porter, J.,

When we reviewed a former trial of this case, we said: “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.” In the trial now under review such evidence was again admitted, and a considerable portion of the charge is devoted to a submission to the jury of the question, whether the plaintiff company acquired the note before or after maturity. This was error.

Smith acquired the note before maturity and for a valuable consideration. As against him the defense of accommodation could not be set up (Moore v. Baird, 30 Pa. 138; Lord v. Bank, 20 Pa. 384; Appleton v. Donaldson, 3 Pa. 381), and if Smith took the note for the plaintiff company, his title was their title.

But the evidence for the plaintiff company in rebuttal is practically uncontradicted, that the company acquired the note before maturity from Smith, as indorser, and for value.

On the other hand, assume that the note passed from Smith to the plaintiff company for value after maturity. Even so, accommodation by the maker is no defense. Smith was not the payee. lie was, as to the plaintiff company, an indorser, who had taken for value and before maturity. His transfer to the plaintiff company, though subsequent to maturity, vested in the latter his rights which could not be defeated on the ground that the note was accommodation paper. “ A person, who takes a bill or note after it is due, takes it subject to all objections in respect of want of consideration, illegality and all other objections and equities affecting the instrument itself, and to which it was liable in the hands of the person from whom he takes it: ” Wilson v. Bank, 45 Pa. 494. See also Riegel v. Cunningham, 9 Phila. 177, Daniels on Negotiable Instruments, secs. 786, 803, and Byles on Bills, 169.

Therefore, the fact that the note may have been originally given as an accommodation was not matter of defense to the plaintiff company’s claim. We sustain the first, second, third, eighth and tenth assignments.

The fourth, fifth and sixth assignments are to the admission of questions relating to the purpose of the giving of the judgment bond to the plaintiff company. The objections are based upon the failure to show authority in Smith to act for the plaintiff company in the surrender of the notes. These assignments are not sustained. The bond was given to and retained by the plaintiff company. It was taken by Smith as their representative. It was not alone for the debt in suit, but covered as well a separate.claim against Hilton. It was accompanied by a warrant of attorney to enter judgment, and contained a waiver of exemption. It was not, therefore, a mere release of the defendant given by an agent without consideration. By this, we do not mean to indicate any opinion upon the facts, nor to exclude proper evidence of Smith’s agency, but it seems to us that upon the evideuce as now presented, the only questions for the jury, under proper instructions, were, first, whether the bond was in fact given in payment of the note in suit, as asserted by Hilton, or as a collateral security, as asserted by Smith, and, second, if it was accepted as payment, was Smith authorized as agent so to accept the same.

The evidence did not warrant the statement' of fact made by the court, which is the subject of the eleventh assignment. This assignment is sustained, and the remaining assignments are dismissed.

The judgment is reversed, and a new venire is awarded.