Citation Numbers: 98 Pa. Super. 257
Judges: OPINION BY BALDRIGE, J., January 29, 1930:
Filed Date: 12/10/1929
Status: Precedential
Modified Date: 1/13/2023
Submitted December 10, 1929. This action of assumpsit was brought on a negotiable promissory note, which is in the following form:
"$1,622.00 Lansdale, Pa. April 20, 1928
Four months after date we promise to pay to the order of B.D. Jaffe Plumbing Supply Co. ...... Sixteen Hundred and Twenty-two ...... Dollars Payable at 1st National Bank, Lansdale, Pa. Without defalcation, for value received.
Hobson Flatware Company, Inc.,
No. Due 8/20. W.H. Hobson, Pres."
On the reverse side of the note appeared the following writing: *Page 259
"B.D. Jaffe Plumbing Supply Co., B.D. Jaffe, Jack Bidnick The Peerless Heater Co., H.B. Gambill, Treasurer.
Pay to the order of any Bank, Banker or Trust Co. All prior endorsements guaranteed. The Farmers National Bank, 60-879 Boyertown, Pa., 60-879.
Allen R. Moyer, Cashier."
The plaintiff company proved at the trial that it became the holder of the note in due course before maturity and without notice of any infirmity. The defense offered in evidence, as an admission that the note was held under an assignment and not by an endorsement, paragraph 5 of the plaintiff's claim, which reads as follows:
"The plaintiff became the owner and holder of the said promissory note by assignment from the said B.D. Jaffe Plumbing Supply Co. before maturity, without notice of any infirmity in the said note, or any defect in the title of the B.D. Jaffe Plumbing Supply Co. thereto, in due course, for a valuable consideration, and is now the owner and holder of the said promissory note."
The court held that the word "assignment" should be treated as surplusage; that the statement of claim sufficiently averred that the plaintiff was a holder, in due course, of the promissory note and submitted the issues raised to the jury. A verdict was found in favor of the plaintiff and the defendant appealed.
The quoted paragraph in the plaintiff's pleadings is not drawn with commendable care and accuracy. If the note had been assigned, the plaintiff, as assignee, acquired no greater rights against the debtor than those of an assignor: In re Pulaski Avenue,
There was no question raised as to any variance between the allegata and probata. The proof offered was in substantial correspondence with the plaintiff's statement and embraced all the essential elements to make out the plaintiff's case. The lower court would have erred in withdrawing the case from the jury's consideration and directing a verdict for defendant.
Judgment is affirmed.