Loucks v. Lightner

Opinion by

Smith, J.,

The plaintiff sues as indorsee of a note made by Henry G. Lightner, the defendant, to the order of George Lightner. The defense is that the note was given without consideration, for the accommodation of the payee, and was received by the indorsee after maturity, with notice of this. The plaintiff denies that such notice was given. This, however, is immaterial, since he admits that the note was long overdue when he took it. Notice of matters of defense between the original parties is material only in the case of a note indorsed over before maturity ; after maturity, the indorsee, with or without notice, takes it subject to all such defenses. On the trial, therefore, the only question related to the consideration of the note.

The only specifications seriously pressed on the argument were the first, fourth and fifth, and these, indeed, are the only ones that we need consider. We might properly disregard the first, since it does not contain the evidence embraced in the bill of exceptions to which it relates, as required by our rules. We need only say, with respect to it, that the right to set up, by way of defense, a contemporaneous oral agreement inconsistent with a written stipulation, on the faith of which the latter was signed, is too well settled to require discussion, and therefore that there was no error in the ruling of the trial judge on the defendant’s offer. At the same time, the evidence offered was not essential to the defense. Between the parties to an accommodation note, an agreement that the payee shall not call on the maker for payment is wholly unnecessary, and it is unusual for the maker to demand any assurance on this point. He need only show the real character of the note, and the law relieves him from such obligation, and also from liability to a third party who receives the note after maturity.

The fourth specification relates to the competency of the payee of the note in suit to testify to certain matters set forth fully in the offer for their admission. An examination of the testimony of this witness and a comparison thereof with the entire offer upon which the court ruled, shows that, as a fact, all the matters therein were brought out on his examination, substantially, if not literally, notwithstanding the ruling of the court. Indeed his testimony is far broader than the offer and was apparently unrestricted in scope; therefore there is nothing to sustain this specification and it must be overruled: Spotts v. Spotts, 4 Pa. Superior Ct. 448. We do not pass upon the question of competency under the circumstances.

As to the fifth specification, the point to which it relates was properly affirmed. The maker and the payee agreed that the note in suit was given in April, 1893, in renewal of a like note given in 1888. The maker alleges that the earlier note, also, was given without consideration, for the accommodation of the payee, while this is denied by the payee. It appears that Samuel Lightner, brother of the payee, and father of the maker, died in 1881, having devised his property to his wife, during widowhood, with remainder in fee to the son upon her death or remarriage, and that she remarried in 1888. On the part of the plaintiff, it is alleged that Samuel Lightner, at the time of his death, owed his brother George §600, and Catherine Lightner, another relative, $200; that to avoid a sale of his property George paid the debt to Catherine and took from the widow her note for the whole amount, and that the note of 1888 was given by Henry as a substitute for his mother’s note when he succeeded to the property on her remarriage. Thus the alleged indebtedness of Samuel Lightner is set up as the consideration of these notes. The only evidence of such indebtedness was the testimony of George Lightner. On the other hand, Samuel’s widow, who was also his executrix, testified that she knew nothing of the alleged indebtedness; that no claim therefor had ever been presented to her as executrix, and that she had never given a note to George. The true character of the note in suit, and its connection with the alleged consideration, were questions entirely for the jury, and were submitted to them with clear and adequate instructions. The verdict seems warranted by the evidence, and no error appearing in the record the judgment is affirmed.