Garden City Nat. Bank v. Fitler

Per. Curiam,

In its amended statement, the plaintiff bank claims to recover from defendant twelve hundred and fifty dollars, with interest, etc., due on defendant’s draft, a copy of which, with indorsements thereon, is fully set forth therein.

It is averred that said draft was drawn by defendant upon himself to the order of Daniel H. Bacon, accepted by the drawee and indorsed by the payee to the order of Thomas F. Morrison, cashier, who, being cashier of plaintiff bank, indorsed the same to the Keystone National Bank or order, for collection for account of said plaintiff bank; that said plaintiff bank, “ being the holder of said draft so indorsed before maturity for value given, delivered the same so indorsed to said Keystone National Bank for collection for plaintiff’s account;” that “ said draft was duly protested at maturity thereof for nonpayment, and returned by said Keystone Bank to plaintiff who is the holder and owner thereof; ” that “the said sum of twelve hundred and fifty dollars with interest, and 12.05 paid for protest, are wholly due and unpaid and are justly payable from defendant to plaintiff.” To this is appended the jurat of Thomas F. Morrison, who swears he is the “ cashier of the Garden City National Bank, plaintiff above named, and that the facts set forth in the above statement are true.”

The statement, substantially complying with the procedure act and rule of court, sets forth a good cause of action.

There is no merit in either of the four specific objections stated in the affidavit of defence. The third objection that “there is no indorsement of the Keystone National Bank. . . . one of the indorsees,” is fully answered by the averment in plaintiff’s statement, to the effect that the draft was indorsed by plaintiff bank to said Keystone National Bank merely for the purpose of collection for account of plaintiff, and, when it was protested for nonpayment, said indorsee returned it to plaintiff bank. The fourth objection, that demand of payment, protest and notice to defendant, etc., are not shown or averred, is equally destitute of merit. There is a distinct averment of protest in plaintiff’s statement, but whether defendant was duly notified thereof or not is immaterial, in view of the fact, which is not denied, that as drawee of the bill he accepted the same.

That portion of the affidavit which claims to set forth a deafen ce “on the merits,” etc., is quite too vague and indefinite ; and, moreover, it fails to connect the fraud suggested with the purpose for which the draft was given. The alleged misrepresentations of the Leahans does not impart a taint to the draft in suit. In Gray v. Bank of Kentucky, 29 Pa. 365, the affidavit of defence alleged that the bills were accepted for accommodation of the drawers, that the proceeds were to be applied to taking up prior acceptances, and that the drawer failed to so apply the proceeds, etc., and it was held that such misapplication, though a fraud, was not such an one as imparted a taint to the paper, and was insufficient to prevent judgment.

Defendant avers that originally he gave his accommodation draft in favor of the Leahans upon their representation that plaintiff bank would advance them money for the express purpose of taking up certain notes, etc.; that, in 1889 and 1890, he paid plaintiff two thousand dollars on account, and gave the draft in suit in payment of the residue. He does not state that he and the Leahans were the only parties to the original draft which he thus took up, by paying part cash and giving the draft in suit for the residue; nor does he aver that plaintiff bank was not the bona fide holder, for value before maturity, of said original draft, nor does he distinctly state any fact or facts that warrant any such inference; nor does he deny, expressly or by necessary implication, the averment in plaintiff’s statement to the effect that it became the holder of the draft in suit “ before maturity, for value given,” and continued to be such holder and owner until suit was brought.

We think the learned court rightly held that the affidavit of defence is insufficient.

Judgment affirmed.