Diffenbacher's Estate

Opinion by

Hendekson, J.,

After a careful examination of the evidence we are of the opinion that the court reached a correct conclusion in regard to the evidence offered in relation to the claim of the appellee. Taking the whole testimony of Charles Minnich into consideration his evidence is to the effect that his interest in the engine was turned over to his father in April, 1904, for a board bill due or to become due. The note on which the appellee made his claim was given September 21, 1903, and the decedent was one of the makers. His solvency does not seem to have been doubted and there was no apparent reason why additional security should have been required. The auditor’s finding on this question was rather an inference than a conclusion based upon evidence and is within the rule stated in Fiscus’s Estate, 13 Pa. Superior Ct. 615; Hindman’s Appeal, 85 Pa. 466; Hawley v. Griffith, 187 Pa. 306, and kindred cases.

The case does not turn, however, upon the question whether Charles Minnich’s interest in the engine was pledged to his father for more than the claim for board or not. If there had been a pledge as security for the note that fact would not defeat the right of the payee to recover. The liability of the obligors on the note was not changed by the fact that personal property was pledged to secure its payment. The contract or pledge, if it existed, was made long’ after the note was given and was entirely distinct from the liability on the note. The existence of the pledge would not deprive the holder of the note of his right of action on the contract, tie is not bound to apply his securities in the first instance. Geddis v. Hawk, 1 Watts, 280. A pledgor cannot offset the pledge against the principal contract unless the pledgee has converted the property. The payee may prosecute his claim for the recovery of Ms debt and at the same time maintain his lien on the pledge : Lord v. Ocean Bank, 20 Pa. 384.

It is further to be observed that in the obligation which the decedent executed he was a joint maker with Charles Minnich and, therefore, primarly liable for the debt. Where one subscribes his name in the proper place at the bottom of a note his rights and liabilities are determined by the position in which his name appears on the instrument. He may be in fact an accommodation maker but he is not thereby relieved from his liability to the payee. He has bound himself directly for a lawful consideration to make the note good. “ An accommodation note is a loan of the credit of the maker to the payee which he may use as' freely and with the same effect as to the maker as he could use a note given for the full consideration.” Penn Safe Deposit & Trust Co. v. Stetson, 175 Pa. 160. Where one signs a note as maker although merely for the accommodation of the payee he thereby obligates himself as a principal and is not permitted to allege subsequently that he was a surety, merely. Knowledge by a plaintiff who is a holder for value that the defendant is an accommodation maker does not give the latter the rights of a surety or change his liability from what it would be as a maker for value : Delaware County Trust, etc., Co. v. Haser, 199 Pa. 17. Diffenbacher’s liability was that of a principal debtor and his estate is chat’geable with the amount due on the note. The rights of his legal representative against his co-obligor can be established in an appropriate proceeding. We need not discuss the question of the liability of the pledgee for depreciation in the value of the pledge. The property was a traction engine. The pledgee had a half interest in it. It was in Ms possession and he had a right to use it. There is no evidence to show that it was improperly used or subjected to any greater depreciation than was natural, taking into consideration the uses for which it was intended. If the joint owner has not accounted for the share of the business to which Charles Minnich was entitled in 1904 he may be called upon to account by the pledgor, but neither the latter nor the estate of the decedent is entitled to a stay of proceedings on the note pending an adjustment of such an account.

The assignments are overruled and the decree is affirmed.