Haimowich v. McLaughlin

Opinion by

Head, J.,

At the conclusion of the trial in this case the record exhibited exactly the situation that was presented in Second Nat. Bank v. Hoffman, 229 Pa. 429. Had the learned trial judge then given a binding direction to find for the plaintiff, a judgment on the verdict must have necessarily been reversed here in obedience to the authority of the case we have cited. There the supreme court but gave effect to the plain mandates of the act of 1901 regulating the trial of such cases. We followed that ruling in the recent case of Shoe Mach. Co. v. Winston, ante, p. 526. Although the plaintiff, when called for cross-examination, purged himself, by his own testimony, of any knowledge of the fraud perpetrated by the payee on the defendant, his credibility was for the jury. There was no fact elicited from the defendant which would bring this case within the second one of Second Nat. Bank, etc., v. Hoffman, 233 Pa. 390, and our own case of Nat. Bank of Coatesville v. Palmer, 56 Pa. Superior Ct. 82.

When the learned court below, in the brief opinion entering judgment for plaintiff, n. o. v., declared the “burden of showing that the check was not received in due course,” was on • defendant, he overlooked the provision of the statute in cases like the one before us.

The judgment is reversed and the record remitted with direction to enter judgment on the verdict. Costs of this appeal to be paid by appellee.