McChesney v. Guernsey , 1915 Pa. Super. LEXIS 357 ( 1915 )

Opinion by

Rige, P. J.,

This was an action of assumpsit by an endorsee against the acceptor of four drafts. Being the person primarily liable, presentment for payment was not necessary to charge him ': Section 70, Act May 16, 1901, P. L. 204.

As the evidence stood when the case was closed the court was right in giving binding direction for the plaintiff. But we think there was error in rejecting the defendant’s offer of evidence embraced in the first assignment. The ground upon which the evidence was rejected was that it was immaterial, irrelevant, and incompetent. The learned trial judge did not give a reason for rejecting the evidence other than that stated in the objection, but the view that he took with regard to the case Avould seem to be expressed in this excerpt from his charge, which is quoted in the third assignment of error: “And the presumption of law is that a holder who comes into court and has in his possession such a draft, such a check or such a bank note, took it in the ordinary course of business, and therefore free from any dispute that might arise between the original parties to it. In order to defeat his recovery the maker or acceptor has the burden of showing that the present holder took it under circumstances of suspicion, and in the absence of any proof of that kind here, I feel constrained to say to you that no matter though Mr. Guernsey may have been imposed upon by the man with whom he dealt, no matter how much he may have been stung, that, so far as the present showing goes, the executors of Mr. Cochran who are uoav here suing on these drafts are entitled to recover.” If this is the correct view then there was no error in the rejection of the testimony embraced in the offer because it was not coupled with an offer to show notice to the plaintiff. But we cannot assent to this view of the laAv. The law upon the subject is thus expressed in Section 59 of the Act of 1901: “Every holder is deemed, prima facie, to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as holder in due course.” It is thus seen that if the facts alleged together with the inference which a jury could legitimately deduce from them would establish the defectiveness of the endorser’s title, proof of those facts was both relevant and material because, if satisfactory to the jury, the burden would be cast on the plaintiff. As pointed out in many cases a party has a right to prove any fact relevant to the issue if proof of that fact will shift the burden of proof. Recurring to the Act of 1901, it will be seen that the title of a person who negotiates an instrument is defective within the meaning of the act under several conditions and amongst these when he obtained the instrument or any signature thereto by fraud or other unlawful means or when he negotiates it in breach of faith or under such circumstances as amount to a fraud. It is to be observed that we are dealing with an offer of evidence and not. with a special plea and, therefore, we cannot agree that the offer was properly rejected because it was not distinctly alleged that a fraud was intended or committed. The question is whether .the facts together with the inferences legitimately deducible therefrom would constitute a fraud, and upon that point we entertain no doubt. We do not deem it necessary to elaborate that subject nor to quote verbatim or paraphrase the offer. This will appear in the report of the case and if the defendant can establish all of the facts alleged we think a case would be made out which would shift to. the plaintiff the burden of proof as above stated. It is as much a fraud to obtain a paper for one purpose'and use it for a different and unfair purpose, as to obtain it by fraudulent statements. Applying the principle that a party is presumed to contemplate the natural consequences of his own act, it would require no straining to say that not only would a fraud be perpetrated if the scheme under which the defendant was induced to sign these papers is carried out but also that a fraud was actually intended. The case may present an entirely different aspect when the evidence is in and the plaintiff has been given an opportunity to rebut it. All that we decide is that the defendant should be given an opportunity to prove the facts alleged in the offer.

The second assignment of error is sustained, the judgment is reversed, and a venire facias de novo is awarded.