Weiskircher v. Connelly

Opinion by

Mr. Justice Stewart,

Tbe action was brought to recover on a promissory note drawn by tbe defendant and payable to tbe order of tbe plaintiff in tbe sum of three thousand dollars, bearing date December 14, 1908, and payable March 4, 1909. In tbe affidavit of defense filed the execution and delivery of tbe note were admitted, but liability thereon was denied, and it was there averred that tbe note was made and delivered to tbe plaintiff at tbe latter’s request and for bis sole accommodation; and further that tbe plaintiff was indebted to tbe defendant in tbe sum of one thousand dollars, on account of money loaned him by tbe defendant, for which indebtedness tbe latter would claim a certificate upon trial of tbe case. A reply to this counterclaim was made in which a consideration for tbe note was alleged and liability for tbe counterclaim was denied. Tbe case was tried on tbe issues thus defined, and resulted in a verdict for tbe plaintiff for tbe full amount of Ms claim. A motion for a new trial followed which was simply a renewal of tbe contention that tbe note recovered upon was without consideration sufficient in law to sustain tbe plaintiff’s claim, but for very different reason than that urged upon the trial, namely, that tbe consideration was illegal because transgressive of public policy. A new trial having been refused, this appeal was taken, Tbe assignments of error are five in number. Without prejudice they may be resolved into two: (1) the instruction of the court that if the finding was in favor of the plaintiff interest could be allowed from the maturity of the note; and, (2) the refusal of the motion for a new trial. The note in suit was the last of several renewals of an original note in a much larger amount which was not interest bearing before maturity. The renewal notes, including the note in suit, were pf like tener, and upon none of them had interest been calculated. The learned trial judge very correctly held that while the note in suit did not by its terms bear interest, if, on its maturity the defendant refused payment and denied liability thereon — facts which were found by the jury in its favor — the plaintiff was entitled to interest from date of demand and refusal. This assignment is without substance. The remaining assignment might well be dismissed on the ground that abuse of discretion on the part of the court in refusing a new trial is not charged, and therefore the refusal is not a matter that can be assigned as error. It is not for us to inquire into the facts: McKenney et al. v. Fawcett et al., 138 Pa. 344. The whole purpose in the motion for a new trial seems to have been to raise a question as to the legality of the consideration, a question not raised or even suggested on the trial. As testified to by the plaintiff himself the consideration was the purchase by plaintiff’s father, through the procurement of the plaintiff, of a certain property which because of its location was supposed to be especially suitable for the conduct of a saloon, and the leasing of the same to the defendant, conditioned on his obtaining a license to sell liquor therein. The fact that no such point was raised on the trial would of itself have justified a summary dismissal of the motion, since it is a well settled rule of practice that when a case has been tried, submitted and decided upon a certain theory, it is too late to advance another which might have been, but was not, put forward at the trial. The learned trial judge, however, was indulgent' enough to hear counBel at length in support of their motion, and file an opinion in which he discusses the merits of their contention. All this, however, forms no part of the record and is therefore not the subject of review here. Discussion of the question raised by this assignment would be out of place for the reason that when a case is brought here on appeal it is to be considered on the theory it was tried on in the court below, and that alone. Error may not be alleged in the appellate court on different grounds from those taken in the court below.

The assignments of error are overruled and the judgment is affirmed.