Nace v. Hartman

Opinion by

Willard, J.,

The questions presented in this case are of easy solution. We are to determine whether the court was in error in submitting to the jury whether a certain note for $2,864.52, made by one Ross, payable four months after date to his own order and transferred to Grim and by him transferred to the appellants was taken by them in payment of their claim against Grim and Hartman. We think the testimony was sufficient to support the verdict.

When the note was offered, the appellants took it without the indorsement of Grim, to whose order it was made payable. They deducted 5 per cent from its face to reimburse them for the expense of collection. They carefully investigated the commercial standing of Ross, the maker, and found Mm rated as worth $100,000. After the death of Grim the entire claim was presented to Ms estate for payment, and the testimony of Mr. Swartley before the orphans’ court in support of the claim against the estate was persuasive evidence that the Ross note was taken not on account but as actual payment. It also appeared in evidence that about one year after the Ross note was taken by the appellants, Mr. Swartley wrote to Mrs. Grim inter alia, viz: “ Mr. Grim and the undersigned felt at the time that the note would be paid at maturity.

“You can readily see that this was a big mistake on our part to accept the Ross note, as Mr. Grim’s estate would have been perfectly good for the amount of his two notes above mentioned.”

The whole evidence was ample to warrant the jury in finding that the parties intended the Ross note as payment of the entire partnership account and that it was so taken.

It also appears that at the time the Ross note was turned over, Mr. Swartley, one of the appellant firm, said to Grim, “ Suppose it won’t be paid ,• ” he said, “ I will give my written guarantee to back half of it if it is not paid,” and the same day executed a paper in words and figures, viz:

“ Philadelphia, October 31.1890.

“ I agree, if tbe W. H. Ross note, No. 59 Liberty street, New York City, will not be paid, to refund the half of it.

(Signed) “ William L. Grim.”

Under all the testimony the judge left it to the jury under his instructions to determine whether the above quoted paper was intended as the personal guarantee of Grim to bind him only or whether it was intended to bind the firm. We think the whole case was properly submitted and the judgment is affirmed.